author: Moncrief, J. Robertson, J. Monell, J. (dissenting.)

text:
    The Fire Department of the City of New York, plaintiff and appellant, vs. Richard Williamson, defendant and respondent.
    1. The notice to be given to owners of buildings under Laws of-1862, ch. 365, in case of inadequate safeguards against Are in New York city, must state the infringement with sufficient precision to leave no doubt as to the alteration or addition required.
    2. A notice stating the defect in the alternative, is insufficient to ground an action for a violation of this statute.
    (Before Robertson, Moncrief and Monell, JJ.)
    Decided November 28, 1863.
    Appeal from an order sustaining a demurrer to the complaint.
    This action was brought by the Fire Department of the city of New York against Richard Williamson, to recover a penalty of §50 for a violation of the fire laws, applicable to the city of New York. The complaint set forth' the plaintiff ’s incorporation, and averred in substance that the defendant was the owner of a dwelling house within the building limits affected by the law; that the building was six stories, and more than forty feet high, and built to contain eight or more families above the first story; that the house was not fire-proof, &c. and had never been supplied with a fire-escape ; that more than ten days had elapsed since the personal service upon the defendant of a notice to remove the' violation. The notice given was set forth in the complaint; it required the defendant to remove the following named violation of the law, to wit: “A six story dwelling house located on lots known as No. 22 and 24 Thames street, occupied by, or built to contain eight or more families above the first story, and not provided with a practical fire-proof fire-escape.”
    A demurrer to this complaint was sustained by Mr. Justice Robeetsou, (see 16 Abb. Pr. 195,) and the plaintiff appealed.

      Wesley Gleason, for the appellant.
    I. The offense is the existence of a building of a certain character not having a fire-escape. That which constitutes the offense is of a compound nature or character, and must possess several elements, losing one of which it ceases to be an offense. This combination of elements constituting the offense, the statute has denominated a “violation.” (Laws of 1862, eh: 356, §§ 27, 37.) 1. The notice served, read in connection with the statute to which express reference is made, can not mislead. That which is required to be removed is the “violation.” It may be removed by depriving the object of any of the elements which make it a violation. The notice could not be understood as attempting to prescribe the method of removal, or to deprive the defendant of the election which the statute gives him. 2. It is said that the notice is in the alternative, and does not apprise the party of the precise nature of the violation, so that he may know what he has to do to remove it; the notice follows the language of the statute, and need not be more explicit. It might not be convenient for the public officer to ascertain and make oath what was the intention of the builder. It is a matter peculiarly within the knowledge of the owner. With this knowledge, he could not fail to determine, with certainty, whether the “ violation ” consisted in crowding too many families into the house and the absence of the fire-escape, or in its being ££ built to contain ” more than eight families. The notice points out the ££ violation ” with reasonable certainty. 3. The leading object of the statute is, to prevent the destruction of life and property by fire. Such construction should be given to it as will effectuate this object.
    II. Beyond sections 37 and 39, there is no provision in the statute as to the form or substance of the notice of violation. It is clear that the statute does not, in terms, require the notice to describe the particular violation. When the party is notified that a ££ violation ” exists upon certain property, owned by him, the statute is fully complied with. A general notice is sufficient. (Fire Department v. Buffum, 2 E. D. Smith, 511.)
    III. This statute is remedial, and should be liberally and equitably construed, both as to the cases embraced in it, and the form of proceeding under it. (2 E. D. Smith, 511. Sickles v. Sharp, 13 John. 497. Bac. Abr. 251, 254.)

      Cummins, Alexander & Green, for the respondent.
    I. Eo sufficient notice under section 37 was given. It is left uncertain in the notice whether the house was “ occupied by,” or <£built to contain” eight or more families. As the process of removing the violation in the one case is entirely different from the mode in the other, it is necessary that the exact violation be pointed out, so as to enable the party notified to know what to do to remove the violation.
    II. The notice requires the defendant to remove the house, whereas the act only authorizes a notice to so alter or add to the house as to bring it within the terms of the act.
   Moncrief, J.

The manifest intention of the legislature, in requiring notice of violation or violations of the act “ To provide for the Regulation and Inspection of Buildiugs, &c. &c.” (passed April 19th, 1862,) was to apprise the owner of the building of the non-compliance with or violation of its provisions, to enable him at once to conform thereto. The notice, therefore, should direct his attention to the infringement complained of, with such a degree, of certainty and .precision as wonld leave no doubt as to the alteration or addition to be made upon his premises. The plaintiffs must be presumed to know whether the violation consisted of the defendant having a six-story dwelling house, occupied by eight or more families, above the first story, or his having a six-story dwelling house, built to contain eight or more families above the first story, and not provided with a practical fire-proof fire-escape; or that the defendant had a six-story dwelling house, either occupied by or built to contain eight or more families above the first story, and not provided with a practical fire-proof fire-escape. If the notice required by the statute can be satisfied by the suggestion to the owner that he has “ violated ” its provisions, and must remove the violation, a notice would seem to be unnecessary, as he must be presumed to know the law, and the situation and peculiarities of his premises. The reasons assigned by the learned judge at the special term, in my opinion, were abundant, and, to my mind, satisfactorily disposed of all questions as to the sufficiency of the complaint. The case in 2 E. D. Smith, 511, does not conflict with the views of the learned judge at the special term. In that case, “an addition” had been placed by the defendant upon his building, and the court held that he could not have been misled, and must have known what was complained of from the notice he received to remove a piazza, &c. The argument of his counsel would seem to have been that because the addition to his building was called by the name of “ a piazza,” therefore the notice did not apprise him of the violation of the act; and the learned court suggest that the defendant might have ‘ required the judge to submit the question to the jury, with an instruction that if they believed from the notice and from all the circumstances in the case that the defendant was not apprised, and did not know what he was called upon to remove, that then the plaintiff could not recover, &c. (p. 518.) Judge Denio, in his opinion in favor of affirming the judgment of the court of common pleas, says, “It is argued that the notice was insufficient, because it did not call the thing which the defendant was ordered to remove ‘a building/ but denominated it a piazza/ The object was to give the defendant notice of what he was required to do, and the question was, whether the building was sufficiently described.” Again, he says, “I am unable to see that it was possible for the defendant to be misled, and I am of opinion that the notice was sufficient.”

Judge Mitchell, concurring in affirming the judgment, says, “The notice was such that no one could doubt what was intended.”

These opinions confirm the views expressed in this case at the special term.

The order made at the special term should be affirmed.

Robertson, J.

Provision may be made in any statute, either expressly or by strong implication, that those who would otherwise come within it may be excused by reason of ignorance of its provisions, either temporarily for a limited time or upon a contingency. This would seem to be eminently just towards owners of a species of property converted into a nuisance by statute. The same end may be accomplished by notifying such owners whenever such property offends the statute, and requiring them to get rid of the offensive quality. Future violators of the law are not entitled to be so leniently dealt with. If such property is a building of a peculiar character, which legally has previously been innoxious, and owned for many years, there is no inducement for its •owners to study new building laws. The conversion of such a building into a nuisance, subjecting its owner to punishment upon the instant of the passage of the statute, although it might be “summum jus,’’ would be “summit, injuria ’’ But one who proposes to put up a building, in a populous city is bound to make himself acquainted with all the laws in relation to such building, and if he violate any, deserves immediate punishment.

The notice required by the 37th section of the statute to the owners of existing buildings is not only the basis of an action for-a penalty, but is made' by the 40th section one of the ingredients of an indictable offensé, and therefore the same rule for construing any that may be given must be adopted in both cases. To determine the proper characteristics of such notice, its object must be ascertained. Until such notice is given, and the owner of existing. buildings fails within' the time fixed by it to remove the defect. forbidden by statute,.he is not made by it guilty of any offense. The existence of that defect may be a violation of the law, but the owner is not chargeable, civilly or criminally, until he fails to do away with it. The object of the notice, therefore, is not simply to notify the owner that he has been guilty of some violation of the law in regard to a certain building, but. of the defect which, if unrepaired within a fixed time, renders him a willful violator of the law. Otherwise, it would be sufficient to inform him of the provisions of the law, and let him discover which one he had violated. ■ The terms of the statute are, that no penalty shall attach until a notice is given, requiring the removal of such violation. It therefore seems to be necessary to inform the owner of the nature of the violation, and so it was held in the case of the Fire Department v. Buffum, (2 E. D. Smith, 511,) which was affirmed in the Court of Appeals. The only question raised in that case was one of construction, whether the notice given did so or not. A notice which should specify that the owner had been guilty of some one of the violations mentioned in the statute, even if they were "all enumerated, would be no better than a simple notice of violation of the act generally, in regard to the building, leaving him to guess which one it was. The case of the future builders of illegal edifices is entirely different. Their offense is complete by the erection, the law is sufficient notice, and no subsequent change can relieve them from the penalty and consequences, except the criminal prosecution provided for in section 40.

It seems, however, to be conceded that the notice must point out the defect, or violation as it is termed in the statute; the only difference of opinion seems to be as to what that violation consists of, it being intended that the want of the fire-escape alone constitutes such a violation. The omission to add something to a building of a particular kind can hardly comprise the whole description of a violation, when a like omission in regard to other buildings is not forbidden. Moreover, the defendant, if liable at all, must be so as one of the third class of persons, designated in the 37th section as persons who fail to comply with such act, who are to forfeit a certain sum for each “ non-compliance,”, and not as one of the first or second classes, which consist of the owners of buildings “on which a violation of such act may be placed or shall exist,” and “master architects who may be employed or assist therein.” For the non-existence of a fire-escape can hardly be said to be “placed or exist on” a dwelling house, and no one can very well be said to be employed or assist in not putting up one. The penalty was, therefore, not for a violation of, but a noncompliance with the terms of the act. That non-compliance consisted as much in the height, arrangement, or occupation of the building which had no fire-escape, as in the absence of the latter. The removal of the violation, or compliance with the act, could as well be effected by a change in the former as by the addition of the latter. The dánger is equally removed, which is what the statute aims at accomplishing, and not at restricting the owner as to the mode in which he shall do it.

If 'the object of the statute were solely to promote the sale of fire-escapes, undoubtedly it might so be construed; but as the object seems to be to prevent overcrowding lofty buildings with tenants, without a means of escape in case of fire, the same object can be as effectually attained by lowering the buildings and diminishing the number of occupants. It is said that it is only the violation, and not the question of removal, which is at issue ; to which I agree for the very reason that the owner is to have his choice- as to the mode of removal; but one involves the other. I apprehend a mere notice to the defendant that he has been guilty of a violation of the law by not having a fire-escape on a particular building would not be sufficient. If so, as he must be supposed to know there was no fire-escape, a notice that he had seven families in it would be equally sufficient, if it were the fact. That would make the fire department the judge which ingredient in the so-called violation the offender should be called upon to correct. The legislature, by making the height and internal arrangement or occupation, as well as fire-escapes, part of the standard of safety, enabled parties, by correcting any such elements, to reduce the danger to that standard.

It is true, the defendant would not be misled by this notice as to his duty if the absence of a fire-escape constituted the whole of the violation ; but he clearly would be, if there were any other elements in it whose removal would cause the violation to disappear. For that very reason, I deem it essential that an entire description of the violation should be given. It certainly would not be a sufficient description of the violation in the complaint to allege th'at the defendant had a dwelling house without a fire-escape, and leave him to prove it was not of the dangerous height or construction, or occupied by the forbidden number of families.

Of course the violation could be removed by levelling the building to the ground. Is not that equally as good a mode under the statute as putting on a fire-escape ? And yet, under the construction contended for, it would not be.

I have not been able to discover in any of the considerations offered any reasons for changing my views at special term. I regret to have been so unfortunate as to have unintentionally expressed any intimation in giving those views that the statute did not apply to houses built as well as those to be built, in reference both to the character of the building and its occupancy, if that be at all material. My effort was only to point out by what different means a building could be made to comply with the statute, when built to contain six families, and when actually occupied by that number, although not so built, in order te illustrate tho necessity of defining the evil to be remedied in the notice. It so happened that the notice in this case did define "the violation as a building so built; ¿but it added the alternative of being so occupied, leaving the defendant as much in doubt as to what was complained of, as if it had said he violated the provisions of the act containing both offenses. (§ 27.)

I, therefore, concur in affirming the judgment.

Monell, J. (dissenting.)

I entirely agree with my brethren that the “notice” required by the act under which this suit is brought is for the purpose of apprising the owner of the particular isolation complained of. Any other construction of the act would do injustice to the intention of the legislature. A person charged with an infringement of this law has a right before he shall be subjected to its penalties, to have his attention called to the violation, that he may remove it, and save the penalty. ■ 1 ■ "

The 27th section of the act requires that all dwelling houses that shall be- occupied by "or built .tu contain “ eight or more families,” &c. shall: have placed therein a practical fire-proof fire-escapej that shall-be approved,- &c. ¡

The 37th section provides that any person who shall violate any of the provisions of the act, or fail to comply therewith, shall forfeit and pay the sum of fifty dollars for each violation, provided that- in all cases of violation that shall be in existence at the time the act took effect no penalty shall attach “until after -notice of ten days shall be given, requiring the removal'of such violation.”

■ ' The 39th"section prescribes the mode of serving the notice; and provides that it “shall contain a description of the building, premises, or property upon which such violation shall have been put or "may exist.”

The notice served in this case required.the owner to remove the following named violation of the law (referring to the act by its title and. date of passage,) to wit: A six-story dwelling house, located, &c., “ occupied by or built to contain eight or more families above the first story, and not provided with a, practical fire-proof fire-escape.”

Every man must be taken to be cognizant of the law, (ignorantia juris non excusat,) and therefore the defendant is presumed to have known that every dwelling house which had been erected in the city of New York prior to the passage of the act referred to, and. wMch was built to contain eight or more families, must be provided with a practical fire-proof fire-escape. He knew that the law required that his dwelling house must be so provided, and that for every day it was left unprovided he was guilty of a'violation of the law.

Although the penalty does not attach, or rather is not recoverable, until after ten days’ notice of the violation and a neglect to remove it, still the violation was complete, immediately on the passage of the law, and except for the ten days’ notice the defendant would have been immediately liable.

The defendant, knowing the law, and that his dwelling house must, to comply with the law, be provided with a fire-escape, omits to provide one, and thus violates the law.. The penalty, however, does not immediately attach. The law requires that he shall be apprised of the violation, and shall have time given him to remove it.

The notice in this case required the removal of a violation of the law; and. it is said the particular violation was not pointed out, so that the defendant was not apprised of what it consisted. Let us see. He knew what the law required in respect to his building, namely, to have a fire-escape placed therein. He was furnished with a description of his building, its location, and such facts as brought it within the provisions of the act requiring him to provide a fire-escape, and was told that his building was not provided with a fire-escape. Now the violation consisted in the building not being provided with a fire-escape; not in the defendant’s ■ not' providing it. The absence of this protection to human life was the infringement; not any. act of the defendant. Hence it was- only necessary that wherein the building was deficient, should be pointed out, and that the defendant should know what he must do or promise to remove the violation.

I think it can not be pretended that the notice in this case did not distinctly point to the deficiency in the defendant’s building, which constituted the alleged violation. It did .so, in so many words—A six story dwelling house, “ and not provided with a practical fire-proof fire-escape.”

It would be difficult to find language more appropriate or significant to express the particular violation.

Is was said that the 27th section required other things beside a fire-escape, and that as the penalty might attach equally to them, more particularity was required. I do not see this. The owner must have notice of that which constitutes the violation, and that is all. If the building is deficient of a “proper scuttle or other opening leading to the roof,” the owner must have notice of this deficiency. If the “ rooms on each floor do not connect by doors from front to rear,” he must be apprised of this. If a “fire-escape” is not provided, he must have notice of that.

The learned justice, who decided the demurer at the special term, was of opinion that the 27th section designates two kinds of violations—one arising from an omission to. have certain things in buildings built to contain a certain number of families, (by which, I understand him, buildings thereafter built;) and the other from allowing any building destitute of those contrivances to be occupied by more than a certain number of families. The former violation he thinks can be terminated by supplying the deficiencies; the latter by removing some of the families.

I do not see that this construction can affect the question of actual violation; it is the violation, not how it may be removed, that is at issue here; but I can not yield to the soundness of such construction.

I think the plain language as well as the manifest intention of the legislature was to place all buildings built to contain, &c., whether before or after the passage of the law, within the requirements of the law. The words, “ or built to contain,” do not refer exclusively to subsequent erections, but to all buildings which had been built to contain, &c. Thus, “ all dwelling. houses already erected (or that may hereafter be built,) that now are (or may be) more than forty feet high, that shall be occupied by or built to contain,” &c.

The construction of the learned justice would entirely defeat the objects of the law in respect to every building erected before the passage of the act. For they might be and continue deficient of all that is required by the 27th section, and yet if occupied by one family less than “ eight,” there would be no violation, and the seven families would be wholly deprived of the security and protection which the law has so benignly provided.

Perhaps the words, “occupied by or ” are superfluous, and “built to contain” would have been sufficient; yet it seems to me that the legislature meant not to make a distinction between past and future erections (except in the single matter of notice,) but to require those things to be done where the building was occupied by “ eight ” families, or built to contain that number of families. Had they intended otherwise, they would have used the conjunction “ and,” and not the disjunction “or.”

The plain sense of this statute is, that a certain description of buildings shall contain designated contrivances, designed for the security of the lives of the occupants, and that the omission to provide such contrivances shall subject the owner to a penalty, after he has been notified.

The sole question, therefore, in this case is, was the defendant notified of the alleged violation P

I can not persuade myself that the defendant, when he read this notice, knowing that the law required that his house must contain a fire-escape, did not fully understand that the violation referred to in the beginning of the notice, was the omission (either of himself or of his predecessor) to provide a fire-escape for his house. It informed him that Ms house was not provided with such contrivance, and he Imew that tMs was a violation, of the -laws ; He was required to remove “ a violation,” which violation consisted in- a building not provided with a practical fire-escape; and although more numerous, "and perhaps more apt words might have been used, they would, in my ¡judgment, have failed to be more significant of what constituted the .alleged" violation. - ;

I can-see'no ¡force in" the suggestion, that the notice required the removal' óf the house. It can not, by any interpretation I. can give it, bear such, ¡'construction. - The house was not the offender, but the owner who had- neglected to place in it what the1 law required should be placed; in it. He might remove the house'ánd thus remove the “violation,” or he might put inha-fire-iescape.!! The question is not how he might remove the violation, (which, perhaps, he may have done in a variety of" ways,) 'but- whether he had noticé: of what- "violation he was required to remove. , ■ ,j ■ . !■

,. In.short, the defendant had notice to remove a “violation” of a provision of law; that such violation was, to wit, “ á house not,provided with a fire-escape.” He knew this "was a violation. bf. the .law ■' and he could not have understood that" the rnotide- ifieánt, any thing else. In, the language of Judge Dehio, in.Fire Department v. Buffum, “I am unáble to see that it was possible for the defendant to be misled,” - ' I ‘am of ." opinion that the learned judge "erred in "sustaining the demurrer, ,.and that the judgment "dismissing the complaint should be reversed.': ■ ■

Order affirmed.


source: Caselaw Access Project

author: By the Court, Bosworth, Ch. J.

license: Public Domain

text:
    William G. Hotchkiss, plaintiff, vs. The Commercial Mutual Insurance Company, defendant.
    1. The defendant insured the plaintiff’s assignor the sum of §2100, on 700 barrels of apples, upon a voyage from New York to Liverpool. The apples were insured as being of that value. The memorandum clause of the policy declared flash fruits {inter alia,) were “warranted by the assured'free from average, unless general.” The ship, being in great peril of being lost, the master and mariners, for the general safety and preservation of the ship and the other goods and merchandise on board of her, threw overboard 476 of the said barrels of apples, whereby they were lost, and the remaining 224 barrels were wetted and injured. The ship arrived at Liverpool with the 224 barrels of damaged apples on board. The plaintiff’s loss in general average had been satisfied by general average contributions which he had received, except the sum of £2,10, 6, which he paid in contribution on 700 barrels of apples, at the contributory value of £66. Held that the rule in such cases is, that where the contributory value exceeds the insured value, whatever is paid in contribution, by the excess of the contributory value over the value in the policy, is paid by the assured. On this proportion he is his own insurer. Tor whatever is paid on a contributory value not exceeding the value in the policy, the assured is indemnified on the proportion insured.
    2. Held, also, that this rule, applied to the facts of this case, entitled the plaintiff to a verdict for £2,10, 5, or whatever the sum was which he had paid in general average contributions. That this exonerated the insurers from all liability for a partied loss, as a partial loss, and made them liable to the plaintiff for the actual general average loss; the insured value of the memorandum articles being greater than their contributory value.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 12,1863;
    decided December 6, 1863.
    This case came before the court on questions of law; there being at the trial no disputed facts. The defendants, by their policies of insurance, insured the plaintiff’s assignor, the sum of $2100, on 700 barrels of apples, on a voyage on the ship Ohio, from New York to Liverpool. The apples were insured as being of that value, at the rate of one and a half per cent upon such value, as the premium paid.
    The memorandum clause of the policy declares that fruits (inter alia) “are warranted by the assured free from average, unless general.”
    On the voyage, the ship “ was, by storms and tempests, and perils and dangers of the seas, brought into great distress, and in danger of perishing and being lost and destroyed in the sea, wherefore, the master and mariners of the ship, for the general safety and preservation of "the ship, and of the other goods and merchandise on-board of her, were obliged to, and did remove from the said ship and throw overboard into the sea, 476 of the said barrels of apples, whereby they were entirely lost; and that, in removing and casting into the sea the said 476 barrels of apples, and other portions of the goods and merchandise laden on board of the said vessel, of which jettison was made on the occasion aforesaid, the hatches of the said vessel were opened, and by reason thereof, and of the exposure resulting therefrom, the remaining 224 barrels of the said apples were wetted and injured by sea water which washed through the hatches,-whilst they were so open, and the said apples were thereby damaged to the extent of $448; and that afterwards, the said ship arrived at the said port of Liverpool, with the said 224 barrels of apples so damaged as aforesaid, on board of her, and that they were, in consequence of the general average losses, sustained by the said vessel and by - the cargo on board of her upon the said voyage, subjected to charges and liabilities which abated the remaining value thereof.”
    By the general average statement duly made in Liverpool, on the arrival of the ship there with her cargo, the apportionment of the general average loss and contribution on the cargo interest was as follows, viz:
    The 476 hhls. jettisoned were valued at (8 s. per hhl.) .............£90, 8, 0
    Charges for freight, primage, duty, dues, landing charges and
    brokerage were,_______________________________________£13, 15, 6
    £ 59, 12, 6
    The consignees of the cargo were charged on the apples delivered (224 hhls.) at the value of ............ £ 6,
    jettisoned (476 hhls.) £60, 2, 10, 5
    £57, 2, 1
    They received value of the apples jettisoned, £59, 12, 6
    And paid general average, 2, 10, 5
    £57, 2, 1 -

      The only allegations in the defendants’s answer denying the allegations in the complaint, are that the 224 barrels were not, in consequence of the general losses sustained by the vessel and cargo, in the complaint mentioned, subjected to charges and liabilities which abated the value thereof.
    It then states, as a further defense, that in the general average contribution and charge upon the vessel, her cargo, and freight, made at Liverpool in respect to the said voyage, the loss on the apples by reason of the jettison, and the other losses sustained by the said goods by reason of the said disaster, distress, and jettison, in the complaint mentioned, was made good to the plaintiff, subject only to a general average charge of small amount, as the proportionate contribution of the plaintiff and his goods to the loss and charges appertaining to the said jettison, viz. to the amount of £2,15,5, amounting to $13.50, which amount, it avers, the defendant has always been willing to pay. It contains an offer that the plaintiff take judgment for $25, to coyer the said general average contribution, and interest thereon.
    It alleges, as a further defense, that, except as to the last named amount of general average contribution, the plaintiff has received and been paid the value, at Liverpool, of the apples jettisoned, as in the complaint mentioned, from the owners of the ship, freight, or other cargo, or from agents of the ship.
    The verdict was in favor of the plaintiff, for $2094.86, being made up of the sum of $1428, the value in the policy .of the apples jettisoned, and $448, the amount of damage to the residue of the apples, with interest on the aggregate of these two sums from July 14, 1861, to the time of the trial, March 27, 1863.
    The question was, what was the nature and extent of the defendant’s liability, and what sum was the plaintiff entitled to recover.

      W. M. Evarts, for the plaintiff.

      D. D. Lord, for the defendant.

      I. The subject insured was not specifically totally lost. A part (224 of 700 barrels) arrived at the destination and was received by the consignees. The extent of the damage on this part was ascertained by a sale, at 2s. on a barrel, valued sound at 8s. This, therefore, was clearly but the case of. an absolute loss of a part only of the subject.
    II. . The subject insured,, “fruits,” being a memorandum article, was. by the policy “free from average unless general.” The insurers in such a case are not liable for any amount or extent of partial loss. (Wadsworth v. Pacific Insurance Co., 4 Wend. 33, and cases cited, Jamson v. Ralli, 36 English Law and Eq. R. 201. 2 Phillips’ Insurance, 460, 20, § 1773. 2 Parsons’ Mer. Law, 274, n.) The terms, “free from average, unless general,” apply to averages, whether • damages or charges of .every kind, unless general average. ' They do not let -in an absolute liability for all kinds of loss bn the occurrence of the slightest injury, ’ whether by way of damage of charge, if that could be the1 subject of general average. The exclusion is not the expression of a condition, the occurrence of which frees the policy of a condition-: as in the stranding clause in English- policies. But it is the exclusion of all claims for losses or damages, by way of specific injury or charge, unless it be a general average.
    III. There being no absolute total loss and no abandonment, the insured could claim only the actual damage. This is fully comprehended in the value of the goods1 jettisoned and the damage to the goods delivered. The freight and charges on the goods delivered, are no part of’the loss by-the sea; perils, and are.not charges against the insurers. The: loss- by the jettison was secured by the vessel and cargo, by" a .maritime lien thereon1; which was in the hands of the consignees -as agents of the insured, and was actually realized by them in money, before this action was brought. The proceeds were received March, 1861. The action was commenced February 10th, 1862. : . '■
    IV. On both grounds of defense, the judgment should be in favor of the defendants. ! 1
   By the Court, Bosworth, Ch. J.

The plaintiff’s proposition is that, as the cause of the loss" was a general average sacrifice, the case is taken out of the exception contained in the memorandum clause, and that he is entitled to recover the insured value of the apples jettisoned, (viz. $1428 for 476 barrels at $3 per barrel,) and also the sum of $448 for damage to the 224 barrels delivered.

The defendants’ proposition is, that the loss is partial, and is controlled by the memorandum clause. That, it not being a case of absolute total loss, and there being no abandonment, only the actual damage can be claimed ; and that the actual damage is measured, as to the goods jettisoned, by the value thereof at the port of delivery and specified in the general average statement, and as to the residue of the apples, by the actual damage thereto, which is the sum they were compelled to contribute in general average. That these losses, or the whole of this damage, has been made good to the plaintiff by the contributions in general average received by him or his agents, except the small sum of £2, 15, 5, sterling, or as the general average statement shows, of £2,10, 5.

Both parties concede that there is a loss for which the defendant is liable, but they differ as to the measure of the defendant’s liability.

I think it may be considered settled that a plaintiff is not entitled to recover in case of an injury to memorandum goods, merely because they were injured, and there was a general average sacrifice in the course of the voyage. And also that he may recover in general average where there is a loss upon his goods by a general average sacrifice.

"Whether, in the latter case, he is to recover his whole actual damage, to be ascertained by the rules applicable to articles not included in the memorandum clause, or whether the damage he can recover is to be measured by the difference between the sum which they justly contribute, and the sum which they are justly contributed for in general average, is the important question in this case.

The usual memorandum clause in the English policies is . that, fruits, &c. “are warranted free from average unless general, or the ship .he stranded.” In the policy before us, fruits, &c. “are warranted by the assured free from average, unless general.”

In Wilson v. Smith, (3 Bur. 1550,) in 1764, it was decided that insurance free from average unless general, does not extend to damage to the goods in a storm. The storm, which made it necessary to cut away and leave the cable and an anchor of the ship, damaged the cargo, which was wheat. But it was not damaged by the act of cutting away and leaving the anchor and cable, or as a direct or remote consequence of that act. Lord Mansfield held that “ the insurer is liable to all losses arising from the ship being stranded, and in all cases where there is a general average; but all other partial losses are excluded by the express terms of the policy. That the word unless means the same as ‘except,’ and is not to he construed as a condition, in the sense that the counsel for the plaintiff would put on the word ‘ conditions,’ which was that, £ if either of the two specified conditions should happen, (if either the ship should be stranded, or any thing should happen which created a general average,) then the warranty, to be free from average, was thereby discharged/ That the words, ‘free from average, unless general,’ can never mean to leave the insurers liable to any particular average.”

In Burnett v. Kensington, (7 T. R. 210,) in 1796, the opinion of Lord Mansfield in Wilson v. Smith was. much, commented upon, and his view, that, in a case of stranding, only the damage caused by the stranding could be recovered, was overruled ; and after full argument it was held that, if a ship be stranded, the insurer is liable for an average loss arising from the perils of the seas, though no part of the loss arose from the act of stranding. The court treated the words, “ or unless the ship be stranded,” as a condition, and where that event happened, that the warranty was ■ discharged. But Laurence, J. in his opinion, says : “How the words of the exception are not warranted free from average ‘unless there be a general average, or unless the ship be stranded)’ but warranted free from average, ‘unless general, or the ship be strandedtherefore, as there is a difference in the expression of these two exceptions, perhaps it may be considered as a condition as applied to the stranding, though it be not a condition as applied to general average.” As he was discussing the exceptions applicable to the case of stranding, and only expresses himself •with: a, perhaps, as to the other exception, the true meaning of which was not involved in the judgment, the obsei-vation quoted may not be very material, in the decision of the case before us.

In Jamson et al. v. Ralli, (36 Eng. L. and Eq. 198,) where the policies contained the clause, “ warranted free from average unless general, or the ship be stranded,” and linseed, in bags, was shipped, it was held, (first,) that in the absence of any separate valuation, or any other stipulation in the policy showing that it was intended to distinguish one portion of the seed from another, and to make a separate insurance upon each portion, as well as a joint one upon all, the policy was on the whole of the seed; and (second) that although the seed was packed in packages, each capable of a distinct valuation, and some of the packages were totally lost, yet, as the rest of the. packages arrived safe, the loss was a partial loss only of the subject matter insured, arid the underwriters were protected by the ordinary memorandum, there being no general average or stranding, and were not liable as upon a total loss of some of the packages.

The ship sailed from Calcutta with 2688 bags of linseed on board ; 505 bags were thrown overboard, in a hurricane, to-lighten the ship ; when the ship arrived at the Cape of Good Hope, 1023 bags were found to be rotten and worthless, and most of them were thrown into the sea, and the rest of them were sold for a few shillings, and had it been sent on would have lost the character of linseed before arrival in England. The remaining 1160 bags arrived safe. There was no abandonment, and the ship was not stranded. The plaintiffs sought to recover for the 1023 bags "as a total loss.

The opinion of the court states that no question arose as to the 505 hags jettisoned. (Id. 202.) There is no fact in that case, as in this, that it appeared that the damage to the 1023 bags was caused by a sacrifice which created a general average.

The court, after criticising and explaining Davy v. Milford, (15 East, 559,) and overruling it, so far as it was a judgment against the underwriters, conclude their opinion thus : “We are of-' opinion that where memorandum goods of the same species are shipped, whether in bulk or packages, not expressed by .distinct valuation or otherwise in the policy to be separately insured, and there is no general average, and no stranding, the ordinary memorandum exempts the underwriters from liability for a total loss, or destruction of part only, though consisting of one or more entire packages, and though such package or packages be entirely destroyed, or otherwise lost by the specified perils.” (Id. 211, 212.) That case holds the rule as it was declared in Wadsworth v. The Pacific Ins. Co., (4 Wend. 33,) but does not seem to decide any thing controling in the case before us.

Mr. Arnould, (vol. 2, p. 857,) says, “it was decided that the true construction of the words 6 warranted free of average unless general,’ was that the underwriter is exempted by the memorandum from liability for any thing less than a total loss, ■ except it be of the nature of general average, but that for general average losses he is in all cases liable.” He cites Wilson v. Smith, (supra.) What was decided, and what was said in that case by Lord Mansfield, has been already stated.

At page 859, in a summary of his conclusions as to the general meaning of the whole, memorandum, he states its meaning to be, (1st.) “ That all losses, in the nature of general average, are to be paid by the underwriter, as though the policy did not contain the memorandum,” and (3d.) “if the ship be stranded while the memorandum articles are on board, then the underwriter is liable to, pay all particular average losses, whether caused by the stranding or not, just as though the memorandum did not exist.”

Under the construction for which the defendant contends, the insurer’s liability, unless the loss be "total, is, practically, nominal. For, although there he a general average sacrifice by a destruction of a part of the apples, and though the residue be injured by the act of sacrificing the part totally destroyed, the assured, practically, recovers nothing for the physical destruction of the apples jettisoned, and certainly nothing for the physical injury to those carried to the port of delivery. For the purposes of the general average statement, the apples jettisoned are deemed to have arrived sound, and are valued at their market value at the port of destination, (however much that may fall below the insured value,) after deducting freight and other specific charges, and the net value as thus ascertained is the sum or value on which they contribute and are contributed for. And though the apples be totally destroyed, as a voluntary but necessary sacrifice, all the assured could recover would be the sum which they paid by way of contribution, if he had received their value, as thus determined in the general average statement, diminished only by the sum which they must contribute.

And as cargo damaged, but not totally destroyed, only contributes on its net value at the port of destination in the condition in which it arrives, ascertained as before stated, it follows that the greater the damage to it the less its value, and the smaller the contribution it is liable to make, and the smaller the loss for which the insurer is liable.

In the present case, the two hundred and twenty-four barrels of apples which arrived are valued at £6, as their contributory value, and although insured at $3 per barrel and damaged by the general average sacrifice to the éxtent of one quarter of their value, the loss for which the insurer is liable can not exceed six sixty-sixths of £2, 10s, 5d.

To hold that the insurer of memorandum articles is only liable to reimburse a general average contribution, is to place the assured in a worse position, in respect- to the extent of his claim against the insurer, where his goods are damaged or destroyed by a general average sacrifice, than where they are physically uninjured and the only loss the owner suffers is the payment he makes as a general average contribution.

In Maggrath & Higgins v. Church, (1 Caines, 196,) it was held by Kent, J. that all' damage immediately arising from a jettison is to be contributed for, though it happen to perishable articles, which are enumerated in the .memorandum, and remain in specie. Kent, J. says : “ The corn being damaged by the cutting away of the mast, is to be considered equally with the mast a sacrifice for the common benefit; a price of safety to the rest; and it is founded on the clearest equity that all the property and interest. saved ought to contribute their due proportion to this sacrifice. The plaintiff is, therefore, entitled to recover as for a general average, for the loss sustained by the injury done to the corn.” Lewis, Oh. J. expressed great doubts “ whether the injury received by the corn from the jettison of the mast and consequent irruption of the sea water, could entitle it to a general average as between insurer and insured. He was strongly inclined to think it within the-spirit and meaning of the terms of the exception ; the object and design of which was to avoid and shut out, between the parties to the policy, every question on the cause of injury to the corn, where it might equally arise from the perishable nature of the commodity, as from external causes.” Livingston, J. gave no opinion, and the plaintiff had judgment, according to an agreement of the parties at the foot of the case, as for a total loss.

In Saltus v. Ocean Ins. Co., (14 John. 138,) it was held that where corn was thrown overboard for the preservation of • the ship and lading, in a storm, by which the residue was greatly deteriorated, and, the vessel having put into a port of necessity, was found to be unfit to be reshipped, and was sold, it was held that the insured was entitled to contribution for the corn thrown overboard, but the insurer was protected by the memorandum from any loss on what remained in specie, although it had been reduced by sea damage, to less than half its value. Tates, J. in delivering the opinion of the court, says, that “No claim can be sustained for a total or a partial loss on the cargo policy. It consisted of perishable articles included in the memorandum, and it was not lost, excepting the articles thrown overhoard to lighten the ship. The defendants, therefore, are only liable to pay their portion in contribution towards the value of the articles which constitute the jettison; a principle repeatedly recognized by this court. (1 John. Cas. 226. 1 Caines, 196. 3 id. 108.”)

Where memorandum articles are damaged by a general average sacrifice, but arrive in specie at the port of destination, if the underwriter is not liable for any partial loss except for general average, and if the loss in the present case, under the rule declared in Wadsworth v. Pacific Ins. Co., (4 Wend. 33;) and Jamson et al. v. Ralli, (36 Eng. Law and Eq. 198,) is only a partial loss of the whole, and there can be no recovery as for a total loss of the part jettisoned, it would seem to follow that the underwriter is only liable to the plaintiff in respect to his general average contribution, as owner of the apples.

That such is the nature and extent of his liability, seems to me to be in harmony with all the views upon this subject declared by the courts of this state ; and to be virtually decided by them.

As to the extent of the underwriter’s liability:

Arnould, (vol. 2, p. 950, § 10,) states that underwriters never contribute directly to general average losses; they are only bound to reimburse the assured their proportionate of rateable amount of his contrihution. They are not bound to reimburse him the full amount of his contribution, but only that proportion of it which the value of his interest as insured, bears to its value as estimated for the purposes of contribution. In other words, whatever per centage on the contributory value the assured may be compelled to pay in general average, the like per centage on their insured value must be paid to him by the underwriter.

The plaintiff’s loss in general average has been satisfied by general average contributions which he has received, except the sum of £2, 10s, 5d, which he paid in contribution on the seven hundred barrels of apples, at the contributory value of £66. Whatever per centage £2, 10s, 5d, is of £66, the plaintiff would be entitled to a verdict, according to a strict and technical application of the rule above stated, for such sum as is a like per centage of .$2100, the insured value of the apples.

But it is obvious that the insured value may so largely exceed the contributory value, that an application of this rule would make the insurer liable in such a case for a larger sum than the assured was compelled to contribute in general average.

The rule seems to be that where the contributory value' exceeds the insured value, whatever is paid in such a case in contribution, by the excess of the contributory value over the value in the policy, is paid by the assured. On this proportion, he is his own insurer. For whatever is paid on a contributory value' not exceeding the value in the policy, the assured is indemnified on the proportion insured. (2 Arnould, 950, § 10. Clarke v. United F. and M. Ins. Co., 7 Mass. R. 365.)

This rule, applied to the facts of this case, entitles the plaintiff to a verdict for £2, 10, 5, or whatever the sum is which he paid in general average contribution. This exonerates the insurers from all liability for a partial loss, as a partial loss, and makes them liable to the plaintiff for the actual general average loss; the insured value of the memorandum articles being greater than their contributory value.

The case will be-reconstructed so as to show that the plaintiff, by order of the court at the trial, had a verdict for such sum as will be correct according to the rules above stated, and that such exceptions were there taken, by either party, as will enable him to present the questions raised by the propositions here decided and the application made of them in this disposition of the action.