text:
    Saurez and others v. The Sun Mutual Insurance Company.
    -Where the expense of repairing a vessel injured by perils of the sea, will exceed a moiety of her value, the owners have a right to abandon her to the underwriters, and to recover for a total loss.
    The assured has the right to make full repairs at the port of necessity, if they can be made there; and the expense of such repairs, at that port, furnishes the criterion for determining whether the loss be partial or total.
    The assured is under no obligation to make partial repairs, so as to bring the vessel to a port where she can be completely refitted at less expense.
    The condition of a vessel, at the time of the abandonment, is the test of the right to abandon.
    As the capacity of a vessel to pursue her voyage is the ground of an abandonment, so the act of repairing, which is to divest the right to abandon, must be performed with the intent to make the vessel seaworthy, so that she may prosecute her voyage.
    An abandonment, when effectually made, relates back to the time of the loss.
    Partial repairs, made by the master in good faith, at the port of distress, in order to sail his vessel to another port for full repairs at a less expense, and not for the purpose of restoring the vessel and continuing the voyage, are to be deemed acts done in preserving the property insured, which do not impair the owner’s right to abandon.
    (Before Oakley, Gil J., and Vandeiipoel and Sandford, J. J.)
    March 13 ;
    May 12, 1849
    This was an action of assumpsit upon a policy of insurance for $6000, on the barque Childe Harold, tried in June, 1848. -The policy of insurance bore date November 18, 1845, and was for twelve months, upon a voyage from New York to a port or ports in the Pacific ocean not north of Guayaquil, from thence to any part of the world which the owners or their agents might direct. If absent, with liberty to extend the time to cover the risk, if necessary, at a port in the United States. The policy contained a stipulation authorizing the vessel, in her voyage, to proceed and sail to, and touch and stay at, any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to the insurance. And it was declared lawful for the insured, in case of loss or misfortune, to sue, labor, and travel, for, in, and about the defence, safeguard and recovery of the vessel or any part thereof, without prejudice to the insurance; to the charges whereof the assurers agreed to contribute, according to the rate and quantity of the sum insured. It was also agreed that the acts of the assured or insurers in recovering, saving, and preserving the property insured, in case of disaster, should not be considered a waiver or acceptance of an abandonment. The counsel for the plaintiffs read the preliminary proofs of loss, showing that the barque sailed from Guayaquil, bound to Havana, with a cargo of cocoa, &c.; that having reached Havana in safety, she commenced discharging and taking in cargo, and while so employed, she encountered a violent hurricane, on the 11th of October, 1846, from which she suffered so badly, that she was unable to proceed. on her voyage without extensive repairs. A protest was made by the master of the barque before the United States consul, and the consul ordered a survey to be made. Surveyors were accordingly appointed to examine into the condition of the vessel, with instructions to take with them the estimates of her thorough repairs, and the estimates of such partial repairs as would put her in a seaworthy condition to make a voyage to New York for further repairs. The surveyors reported that to make full repairs would cost $9900, which would amount to an abandonment of the barque, and she would have to be sold for the benefit of all concerned; but that partial repairs, sufficient to enable the vessel to proceed to New York, might be made for the sum of $960 ; and they recommended that partial repairs only should be made, and that the captain should proceed to New York with the vessel, to complete the repairs at that port. Partial repairs were accordingly made at Havana, to the amount of $2170 03 ; the vessel proceeded to New York with a light cargOi On the 11th of November, 1846, in New York, the assured abandoned the vessel to the underwriters, on the ground that the estimates made in Havana, of the expenses of repairs, showed that the barque had sustained damage and injury to an extent beyond a moiety of her value. The vessel sailed from Havana on the 9th or 10th of November, 1846, for New York. After her arrival at New York, she was sold for $8000, and then repaired by the purchaser. The expense of such repairs, deducting one third new for old, was less than half the value of the vessel. The master of the barque testified that there was no communication with the owners in New York, nor was there time for any, before the temporary repairs were put on. The jury found a verdict for the plaintiff, by consent, for $7000 damages, subject to adjustment, and td the opinion of the court upon a case to be made, with liberty to either party to turn it into a bill of exceptions or special verdict.
    There was a similar suit, between the same parties, upon a policy on the freight.
    F. B. Cutting, for the plaintiffs.
    I. The preliminary proofs of loss and interest weré sufficients If there be any defect in them, the defendants cannot, under the circumstances proved, take advantage of it.
    II. The damage to the ship by the hurricane of October, 1846, was so great, that she was incapable of being repaired at Havana, so as to prosecute her voyage to New York, except at a cost exceeding her value as fixed in the policy. Clearly it would have exceeded a moiety.
    III. The assured had the right to repair the vessel at Havana, and to continue the voyage. He was not obliged to relinquish the great purpose of his enterprize, viz., carrying a full cargo ; and to put on temporary repairs, and, in a crippled state, to proceed in ballast trim to New York, because the repairs could be obtained there at a cheaper rate. (Center v. American

      Ins. Co., 7 Cow. 564; American Ins. Co. v. Center, 4 Wend. 45.)
    IY. The abandonment, on the 11th November, 1846, was made without delay, upon the receipt of intelligence of the disaster-. The title to the vessel was thereby transfeired to the Underwriters from the time of the loss ; and all subsequent events were at the risk of, and for the account of, the underwriters. (Scheiffelin v. N. Y. Ins. Co., 9 Johns. R. 26; 2 Phill Ins. 415 ; The Brig Sarah Ann, 2 Sum. 206, 210.)
    Y. The act of Joaquin Gomez and of the mate, (who, after the death of the captain, succeeded to the command,) in putting on temporary repairs, and undertaking to proceed to New York in ballast trim, did not take away from the assured the right to abandon. It was not an election by the assured, or their agents, to repair, followed by actual repairs and a resumption of the voyage, so as to deprive the plaintiffs of their right to recover for a total loss. (Dickey v. American Ins. Co., 3 Wend. 658 ; 2 Phill. 406, 408 ; Walden v. Phœnix Ins. Co., 5 Johns. 310; Livingston v. Hastie, 3 Johns. 293.)
    At the time of the abandonment, the vessel was not repaired, or attempted to be repaired. (Abbot v. Broome, 1 Caines’ R. 292.)
    YI. The temporary repairs in Havana, and proceeding to New York, were acts intended for the benefit of the underwriters and for their account. To treat them as prejudicing the rights of the assured, would be partially to forbid any interference with, or acts done to, the property, with the view of protecting it and of diminishing the loss.
    YII. It was for the purpose of preventing such a result that the New York underwriters have lately introduced into their policies the following clause; “ That the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of abandonment.”
    YIII. The plaintiffs are entitled to judgment for a total loss j viz., the sum subscribed to the policy; and also for the expenses incurred in Havana for temporary repairs, wages, &c. (Potter v. Prov. Wash. Ins. Co., 4 Mason, 300; 2 Phill. 464.)

      H. Ketchum, for the defendants.
    I. The offer to abandon bore date November 11, 1846. At that time the barque was on her return voyage from Havana to New York, her partial repairs having been completed November 2, 1846. The state of facts on the 11th November, determines the question of the right of the assured to abandon. (3 Kent’s Com., last edition, 324 and 325, and authorities in note a.; Dickey v. N. Y Ins. Co., 4 Cowen, 222, 245, 246, 249 ; 2 Phill. 371 to 374 ; 3 Wend. 658, 664.)
    ■ II. The acting commander of the barque, acting as the agent of the owners, had elected to repair instead of to abandon, before the offer to abandon, and having so elected, the owners were bound by it, and could not therefore rightfully abandon, (Dickey v. N. Y. Ins. Co., 4 Cowen, 246; 2 Phill. 442 ; Carter v. Am. Ins. Co., 7 Cowen, 564.) “ In general, the master cannot impair the right to abandon, by anything he does. The act of repairing is an exception.” (7 Cowen, 582.) In Humphrey v. Union Ins. Co,, (3 Mason, 429,) the owner elected through his agent, the master, to make the necessary repairs and continue the voyage.
    III. The right to abandon, if the assured were not deprived of that right by their election to repair, depends on the state of facts on 11th November. At that time the vessel was on her passage from Havana to New York, and the value of the repairs required to restore her, in the condition she then was in, did not amount to a moiety of her valuation in the policy.
    IV. Even if the cost of temporary repairs may rightfully be added to the cost of repairs put upon the vessel after she was sold in her home port, it depends upon an adjustment to be made under the direction of the court, whether such repairs exceed a moiety of the appraised value of the vessel. In making such adjustment, the repairs valued must be restricted to those required to put the vessel in the condition she was in before the disaster, and not to any repairs required for a different trade or commercial employment.
   By the Court. Sandford, J.

There is no doubt that while the injured vessel remained at Havana, and before the partial repairs were made there, the plaintiffs were entitled to abandon, and to recover for a total loss. Full repairs might • have been made in that port, and the expense of such repairs at the port of necessity, furnishes the criterion for determining whether the loss be partial or total. The plaintiffs were under no obligation to make temporary repairs, so as to bring the vessel to a port where she could be completely refitted at less expense. (The American Insurance Company v. Center, 4 Wen. 45.)

• The defence rests upon the fact, that before the abandonment was actually made by the owners in New York, the barque had been so far repaired at Havana, as to enable her to proceed to New York with a light cargo, and had actually sailed from Havana a day or two before. The expense of the full repairs subsequently made in New York, after the proper deduction of one-third, added to the cost of the partial repairs at Havana, amounted, it is said, to less than half the valuation of the barque, and thus there was no constructive total loss. The defendants rely with great confidence on the case of Dickey v. The American Insurance Company, 3 Wen. 658 ; and a case of the same plaintiff against The New York Insurance Company, arising on a policy on the same vessel, reported in 4 Cow. 222. There the ship having met with disasters, was fully repaired at the port of necessity, at an' expense exceeding three-fourths her value, and was proceeding on her voyage with such of her cargo as had not been sold, at the time the abandonment was made. It was held, that by fully repairing, the master as the agent of the assured, converted the total into a partial loss, before the date of the attempted abandonment, and that the owner could recover for a partial loss only.

The important difference between the case of Dickey and the one before us, is this. The voyage in that case, so far from being broken up, was actually consummated; and the ship when abandoned, was not only in good safety, but was doubtless a better ship than she was before the disaster. In this case, ■the voyage was lost; for the freight earned arose merely from putting on board sufficient weight to make a suitable ballast; and so far from being in good safety when she was abandoned, she was totally unfit to carry a cargo ; and her subsequent repairs here, cost more than half her valuation.

The condition of the vessel at the time of the abandonment, is undoubtedly the test of the right to abandon. As the barque was situated, when the plaintiffs abandoned, within one or two days sail of Havana, there was still a total loss, unless the owners were bound to bring her to New York for repairs.

It is not claimed that they were so bound, unless the act of the master in putting the barque in a condition to come to New York for repairs, be deemed the act of the owners, and constituted an election to repair, instead of abandoning.

In point of fact, there is no reason for believing that there was any intention of the master to make full repairs. He was unquestionably acting for what he supposed was the best interest of all concerned. And it was the interest of the underwriters, whether the loss was partial or total, to have the barque repaired here, rather than at Havana.

Then was the master’s act, an election on the part of the owners to repair the vessel ?

It is conceded that in general, the master cannot, by any thing he does, impair the right to abandon ; but it is said the act of repairing is considered an exception. This exception is sustained by the case of Dickey, before cited, and in this state may be said to be founded on that decision. As the incapacity of the vessel to pursue her voyage, is the ground of an abandonment ; so, in our judgment, the act of repairing, which is to divest the right to abandon, must be performed with the intent to make the vessel seaworthy, so that she may prosecute the voyage. Such were the repairs in the case of Dickey, which were held to defeat the subsequent abandonment. The vessel had been fully restored. The same circumstances existed in Humphrey v. The Union Insurance Company, (3 Mason, 429,) where the master’s repairs were held to deprive the assured of the right to abandon.

It was conceded in Dickey v. New York Insurance Company, by the learned counsel for the underwriters, (now Mr. Justice Duer,) that in the case of a plain total loss, where the voyage was palpably gone, the master, before abandonment, acts for those concerned, and is so far the agent for the assurer. One principle reason why the master’s election to repair takes away the right to abandon, is that the assurers are always entitled to determine for themselves whether they will repair the vessel or not.

This reason, it is apparent, does not apply to a case where mere partial repairs are made, not in order to prosecute the voyage, but to bring the vessel from a port of necessity to one where she may be fully repaired, at half the expense. Such repairs are purely of the nature of salvage, for the benefit of all concerned. Each case of this kind must be governed by its peculiar circumstances. No master would take the responsibility of such a course, unless there was a moral certainty that a substantial salvage would be effected by it; and his responsibility, with the requirement of good faith, seems to furnish a sufficient protection against wrong to the underwriter. (See Milles v. Fletcher, Dougl. 231.) In many cases, from necessity, the master is compelled to take various important steps for the preservation of the ship, or what remains of her after the disaster, and before he can communicate with either the owners or the assurers. In such cases, he is bound to act as he would if the property were his own ; and if the loss be total, his acts in that intervening period are deemed those of the assurers. The, abandonment, when effectually made, relates back to the time of the loss; (Clarkson v. Phœnix Insurance Company, 9 Johns. 1; Waddell v. Columbian Insurance Company, 10 Ibid. 61;) and it would be unreasonable to hold that partial repairs, made for the preservation of the property, are the act of. the assured, and deprive them of the right to abandon.

The case of Hall v. The Franklin Insurance Company, (9 Pick. 466,) cited by the defendants, differs from the one at bar, in the essential fact, that the vessel insured was not so much injured that she could not be taken from Key West, the port of distress, to New Orleans, or even to Boston, without any repairs whatever. In fact, she sailed to Boston, and was there repaired. If the barque in question, had been in a condition to sail from Havana to New York, after the disaster, without being partially repaired, the case would have been parallel to that in 9th Pickering. It is not there decided that the owners are bound to make partial repairs at the port of distress, so as to take the vessel to another port where repairs can be made at less expense than they can be made at the former; the voyage in the meantime being broken up.

We have examined the case without reference to the clause in the policy, providing that the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered as a waiver or acceptance of an abandonment. The good sense of the contract leads to this conclusion, without a special provision in the policy; and we think that partial repairs, made in good faith by the master, at the port of distress, in order to sail his vessel to another port for full repairs at a less expense, and not for the purpose of restoring the vessel and continuing the voyage, are to be deemed acts done in preserving the property insured, which do not impair the owner’s right to abandon.

In the suit upon the freight policy, nothing need be said, as there was a technical total loss of the vessel.

The proof, however, shows presumptively, a like total loss of the freight, independent of the loss of the barque.

The plaintiffs are entitled to judgment in both suits, as for a total loss.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Van Natta v. The Mutual Security Insurance Company.
    A person insuring the cargo of a canal boat, generally, may in case of a loss, recover upon proving a special interest in the cargo, as a common carrier.
    A party possessing merely a special interest in the subject matter insured, may always recover the value of that special interest, on an insurance of the entire subject matter.
    In a declaration upon a policy of insurance on the cargo of a canal boat, it is a sufficient’ averment of the plaintiff’s interest to allege that the insurance was for . the account and benefit of the plaintiff as a common carrier.
    And it is a sufficient averment of the liability incurred, for the plaintiff to state, in such a declaration, that an amount of goods exceeding that mentioned in the policy was entrusted to him as carrier, and that they were consumed by fire, and that the plaintiff thereby became liable to pay to the respective owners a greater sum than that insured. It is not necessary to aver actual payment by the plaintiff to t.he owners.
    In a declaration upon a policy of insurance, a general averment of the plaintiff’s interest in the property insured is sufficient.
    (Before Oakley, Ch. X, and Vanderpoel and Sandeord, X X)
    March 7;
    May 12, 1849.
    Demurrer to declaration on a policy of insurance. The declaration contained five counts. The first set forth that on the 21st July, 1847, the defendants executed to the plaintiff, a policy of insurance in the sum of $5000, upon the cargo of the G. B. Webster, on her voyage from New York to Buffalo. That the insurance so made was for the proper account and benefit of the plaintiff as a common carrier for hire, of goods, &c.; that the cargo was shipped, July 22d, 1847, and the vessel left New York a day or two after, and that on the 31st of July, the boat and cargo were consumed by fire, without any evil practice on the part of the plaintiff, and that the plaintiff, as common carrier, was interested in the cargo to the whole amount, and became liable for the same to the shippers; that due notice was given to the defendants, and due proof of the.loss, and of the plaintiff’s interest, was made to them.
    The second count set forth the policy, which provides, among other things, against all losses, excepting, those occasioned by theft, robbery or barratry of the master or crew, or want of ordinary care and skill. Also, that in case of loss, the damage should be estimated according to the true interest and actual value of the property insured, at the time of the loss, and to be paid within 60 days after notice and proof thereof. And that in case of any loss by collision, or by the act of any person, the assurers were to receive all indemnities, that might be recovered therefor, in proportion as they had insured. The assured were not to abandon on account of the boat grounding, or being otherwise detained.

      The remaining averments were similar to those contained in the first count, except that there was no allegation that the insurance was made for the benefit of the plaintiff as a common carrier. The third count contained similar averments to the other two, except that it contained no allegation of the service .of preliminary proofs of the loss upon the defendants, and it contained an averment that the plaintiff, at the time of the insurance and loss was “ interested” in said cargo. The fourth and fifth counts were the common, money counts.
    The defendant demurred to the first three counts, and pleaded the general issue to the other two. The alleged causes of -demurrer to the first count were that the plaintiff averred no interest in himself, or ownership of the cargo ; that the policy insured losses by perils to the cargo, but that the plaintiff alleged .that he was not the owner of the cargo, nor interested therein otherwise than as a carrier, and that there was no allegation that as such carrier, he had paid the value of the cargo, nor was there any allegation of such value. The causes of demurrer to the second count, were that the plaintiff did not set forth with any certainty in what manner, or how, he was interested, or in what his interest consisted; that although he stated he made proof of -interest, he did not allege in whom such proof showed interest, •nor the value of the same, nor whether it was an interest covered by the policy. Similar causes of demurrer were alleged as to the third count.

      E. Sandford, for the plaintiff.
    I. The interest of carriers in goods carried by them, in consequence of their liability to the owners, may be insured under a description of the goods themselves, without specifying the particular interest intended to be insured. (1 Phil. on Ins. 173; Crowley v. Cohen, 3 B. & Ad. 478; De Forest v. Fulton Ins. Co., 1 Hall Rep. 84, 110, and the cases cited.)
    : II. The averment of interest is not necessary in a declaration founded on a policy upon interest; and where interest is averred it may be rejected as surplusage. (Buchanan v. Ocean Ins. Co., 6 Cow. 318, 32 ; Nautes v. Thompson, 2 East, 392; 2 Phil, on Ins. 612, 613, 622; Succua v. Crawford, 5 B. & P. 308 ; Goram v. Sweeting, 2 Saund. R. 202, 203 ; Clendining v. Church, 3 Caines, 141, 144; Granger v. Howard Ins. Co., 5 Wend. 200; 2 Marsh, on Ins. 682 ; De Forest v. Fulton Fire Ins. Co., 1 Hall Rep. 84.)
    III. The plaintiff, as carrier, had a special property in the goods and an interest in their safety, entitling him to effect a valid insurance thereon in his own name and to recover the whole value thereof, in case of loss. His insurance is upon the goods, though his indemnity is against the consequences of his implied guaranty for their safe carriage. And he is liable to the ex- • tent of the whole value of the goods, in the event of their loss. A common carrier is an insurer against fire. (De Forest v. Fulton Ins. Co., 1 Hall R. 91, 99, 110, 121; Crawley v. Cohen, 3 B. & Ad. 478 ; Oliver v. Green, 3 Mass. R. 133 ; Bartlett v. Natter, 13 Mass. R. 267; Story on Bailments, § 507 a.; 2 Kent’s Com. 597, 8.)
    1Y. It was not necessary, in order to show a right on the part of the plaintiff to recover under this contract of insurance, to aver that as carrier of the cargo, he had paid to the owner or shipper of such cargo, the value thereof or of any part thereof, There is no such stipulation or condition in the policy, and it is an accountability with which the underwriter has no concern whatever. The test of his liability is the insurable interest of the assured, and he is not interested in the disposition of the proceeds. (De Forest v. Fulton Fire Ins. Co., 1 Hall, 91, 110, 111, 116 ; Worth v. Wilson, 1 B. & Ald. 59 ; Lyle v. Baker, 5 Bin. 457; Sedg. on Dam. 370; 2 Duer on Ins. 23, 24, § 19; Port v. Jackson, 17 J. R. 239, 245, 6 ; Id. 479, 482, S. C. in error; Matter of Negus, 7 Wend. 499, 503, 4.)
    Y. The value of the cargo is sufficiently alleged. The general allegation of damage is sufficient, in pleading. The declaration shows that there was property at risk, and that a loss of that property occurred from a peril insured against; which it is alleged was more than the amount insured.

      F. B. Cutting, for the defendants.
    I. The policy does not contemplate nor cover -an insurance against loss or damage to the cargo, incurred by the plaintiff as a common carrier.
    • II. Neither of the counts of the declaration avers any ownership in the plaintiff, of the cargo, or shows that he had any insurable interest therein, except so far as the risks assumed by him as a common carrier are insurable, and these risks are not covered by the policy.
    III. If the policy shall be construed to insure the plaintiff against loss to him as a common carrier of the cargo, the decla- . ration does not disclose sufficient to enable the court to say that the plaintiff had become liable to the shippers of the cargo, as a common carrier.
    IY. Neither of the counts of the declaration sufficiently alleges or shows the amount or particulars of any liability incurred by the plaintiff as a common carrier, or any proofs of his actual loss furnished to the defendants, sixty days prior to the commencement of this action.
    Y. The declaration ought to have set forth the nature of the cargo, so far as to enable the court to see that it was within the terms of the policy; the true and actual value thereof, at the time the loss is alleged to have happened ; the particular interest of the plaintiff in the cargo ; and that proof of the loss sustained by the plaintiff, was made sixty days prior to the commencement of this suit.
   By the Court. Sandford, J.

The principal question raised by the demurrer, is whether the plaintiff) who insured the cargo of a canal boat, can recover upon proof of interest as a common carrier. It was decided by the King’s Bench in Crowley v. Cohen, (3 B. & Ad. 478,) that the interest of a carrier in goods carried by him, was covered by a policy insuring goods in canal navigation boats, without any other description of the particular interest intended to be covered. The insurance was on “ goods as interest might appear,” but the case did not turn upon this clause. It was placed on the broad ground, that the subject matter of the insurance is to be properly described, but the nature of the interest need not be specially set out in the policy; that being a matter which bears only on the amount of damages.

The principle of this case is adopted by Mr. Phillips, in his Treatise on Insurance, (1 Phill. Ins. 173;) and an analogous principle had been applied in this court, four years previous to Cronley v. Cohen, to an insurance effected by a commission merchant, on goods in his possession for sale. (De Forest v. The Fulton Fire Insurance Company, 1 Hall’s R. 84.) The very elaborate judgments given in that case, render it unnecessary for us to enlarge upon the reasons for permitting the assured to recover the value of his special interest on an insu- - ranee of the entire subject matter. The chief justice in his illustrations, (p. 110,) puts the precise case before us, of a common carrier, insuring the goods entrusted to him.

The objections made to this doctrine, will be briefly noticed.

1. That the carrier has not a proprietary interest in the cargo. This is equally applicable to a factor who has not made advances, so far as it is founded in law.

2. The policy, it is said, contemplates an abandonment ; whereas the carrier has no interest to abandon ; the only consequence of this is, that there can be no constructive total loss, and it is therefore in favor of the assurer.

3. The policy also contemplates the benefit of salvage and of substitution, neither of which can be had in respect of the interest of a carrier. As to the salvage, it is evident, that where the recovery can only be for actual loss, the assurer will have the full benefit of all salvage, in the diminished amount of such loss. And as to the substitution, none arises in consequence of the very restricted extent of the risks assumed. This leads us to speak in connection, of the fourth and fifth objections, which are, that many of the risks insured against are inapplicable to the interest of carriers, such as the perils of the river and canal navigation ; and that the risks excepted, are the identical risks for which the carrier is liable to the owner, such as theft, robbery, barratry, undue lading, and want of ordinary care and skill in the navigation.

Both of these positions showhow exceedingly restricted was the liability which the assurers assumed in favor of the carrier. Indeed, their counsel stated that the only risk they incurred, was that of fire. All these stipulations form a part of the policy; but we are to bear in mind that a single printed form of the policy, is in practice, applied to all cases falling within one class, as for example, to all insurances on cargo ; and the uniform course is to construe them liberally, in respect of the actual interest and subject matter insured. If it were shown that the omission to describe the true interest of the applicant, led to the assumption of risks beyond those incurred by a simple description of the subject matter; it might possibly furnish a good defence, as being a misrepresentation or concealment. But there is hardly a conceivable case, in which an insurance of the particular, special, or qualified interest in goods, will subject the assurer to a greater hazard, than he would incur, by insuring the same goods for the absolute owner. There is no possible ground for believing that a greater risk was incurred in the instance before us ; and we have no doubt that the plaintiff’s loss was covered by the policy.

The averment of the plaintiff’s interest is sufficient. In the second count, it is more specific than was requisite by the common law rules of pleading.

The liability incurred, is also sufficiently set forth. A loss by. fire through misfortune, falls upon the carrier. (Gould v. Hill, 2 Hill, 623.) The counts state that an amount of goods exceeding that mentioned in the policy, was entrusted to the plaintiff as carrier, and was consumed by fire, and that he thereby became liable to pay to the respective owners, a greater sum than that insured. It was not necessary to aver actual payment by the plaintiff to the owners. And we think, considering the dates and circumstances, the averment made suffices for the actual value of the goods when destroyed; if indeed, any averment beyond the carrier’s liability to pay five thousand dollars for them, was necessary.

The presenting the preliminary proofs is stated in the two first counts. The proofs were those adapted to the interest of the assured. The third count is defective in omitting the allegation as to the preliminary proofs.

It was also objected to the third count, that it contained no averment of interest. In fact, it contains the usual general averment of interest, instead of the statement of the particular interest disclosed in the other counts. In this respect, the count is good. Whether it can be supported by evidence of the special interest as common carrier, we need not determine. (See Granger v. Howard Insurance Company, 5 Wend. 202.)

The plaintiff is entitled to judgment on the demurrers to the first two counts, and the defendants are entitled to judgment on the demurrer to the third count of the declaration. The defendants may plead to the two former, and the plaintiff may amend the latter,"within twenty days; without costs to either party.


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

text:
    Webb v. The National Fire Insurance Company.
    Capstans of locust partly prepared, for vessels which the insured was building, were held to be within his policy, “ on his stock of ship timber, including locust, Sic.”
    On the construction of a policy of insurance against fire, effected on a ship builder’s stock of ship timber, “ contained in the yard bounded by” three specified streets and the river, (in the city of New York,) proof was received to the effect that it was usual for the owners of ship yards in that city, to keep their stock of timber on the side walks, and in the streets in the vicinity of their yards, as much so as within the yards. Some of the timber of the insured, lay across the side walks, partly in the street, and partly on the land of the insured, which was only partially fenced. Held, that the evidence was properly received, to show what was the meaning of the terms “ stock of ship timber in a ship yard,” as used by the parties in the policy, and to define the term, yard of a ship builder. And there being no contradictory testimony, held, that the insured was entitled to recover for the loss of his timber, situated in the streets adjacent to his land.
    (Before Oakley, Ch. J., and Vanderfoel and Sandfokd, J. J.)
    May, 1849.
    Assumpsit on a policy of insurance, tried before Sandford, J. in February term, 1849. The policy was dated August 20th, 1847, and thereby the defendants insured the plaintiff for one year, “ against loss or damage by fire, to the amount of(here followed the written portion of the policy, which was in the original, thus expressed and arranged, viz.)
    “ Six thousand, three hundred dollars, viz. ■
    “ $3500 on his stock of ship timber, including planks, futtocks, knees, locust, standards, and stageings.
    300 on his moulds and patterns.
    500 on tree nails.
    500 on blocks, falls, clamps, screws, augers and tools, contained in the yard and buildings therein, bounded by Sixth and Seventh streets, and Lewis street, and East river.
    500 on his two story frame building, known as his office, situate in said yard. •
    500 on his draughts, books, papers, moulds and models, contained in said office.
    500 on his stock of iron and tools, contained in the blacksmith’s shop, situate No. 302 Lewis street.
    $6300 one year, a 1-| p. c. - - - - $94 50
    It was admitted on the trial, that a fire occurred on the 8th of April, 1848, by which the property alleged to have been covered by the policy, was" damaged; and that on the company being notified, the parties appointed Joseph Bishop and William . Mackay, to appraise such damage. The appraisements made by them as after mentioned, were delivered to the company, and were received by the latter as preliminary proofs, and also as evidence of the loss occasioned by the fire.
    ■ The first appraisement was produced and read to the jury, in these words, viz.
    “ We estimate the damage by fire which occurred on the night of the 8th inst., to the property of Mr. Wm. H. Webb, at his ship yard, situated at the corner of Lewis and Seventh streets, . as follows:

      On timber lying in Seventh and Lewis streets, adjoining the buildings, at.....$1160 00
    “ timber and plank lying in the yard, - - 1210 00
    “ moulds and patterns,...... 300 00
    “ treenails,....... 500 00
    “ blocks, falls, tools, &c.,..... 500 00
    “ draughts, books, papers, models, &c., contained in
    the office,....... 500 00
    Joseph Bishop,
    William Mackay.
    New York, April 11th, 1848-.”
    Mr. Bishop, as a witness for the plaintiff, testified :
    “We were requested by the parties, or by one of them, I cannot say which, to make a separate estimate of the plank and timber that was prepared for the two steamships then building by Mr. Webb, for Howland & Aspinwall, we accordingly made an appraisement of this portion of the damaged property. This is the original.”
    It was then read to the jury as follows :
    “ We estimate the damage by fire to the timber, &c., prepared for the vessels now building in the yard of Wm. H. Webb, at six hundred and fifty dollars.
    (Signed as before.)
    New York, April 12th, 1848.”
    The witness further testified :
    “ It was also requested to appraise the damage to six capstans that were in Mr. Webb’s building in his yard. These capstans were partly made, and Mr. Mackay and myself appraised them at $215.”
    This last appraisement was then read in evidence as follows :
    ■ “ In addition to the estimate furnished 11th inst., there was in the building six capstans partly finished, valued at two hundred and fifteen dollars.
    (Signed as before.)
    New York, April 12th, 1848.”

      The witness further testified, that ship builders have been in the practice of having their stock of timber in the street in the vicinity of the ship yards, as much so as in the yard. Such has always been the practice since the witness has known anything of ship building in this city, and that has been for about twenty-five years.
    This evidence of practice was objected to in due season by the counsel for the defendants as incompetent. The objection was overruled by the court.
    The witness further testified : Capstans are made of locust, sometimes they are made partly of mahogany, but the capstans in the plaintiffs yard that were damaged by the fire were of locust. The stock specified in our appraisement consisted of what was wrought and prepared by the workmen as timber and stock; and also of what was unworked. It was usual to store or keep in the yard and on the street, timber and plank indiscriminately. We keep the stock just where it is most convenient to place it; we frequently have the heaviest of the timber in the street; Mr. Webb’s ship yard was not enclosed by any fence or enclosure. It had been enclosed at some period, but was not so then.
    Ship yards are not usually enclosed. Mr. Webb’s yard at some former period of time probably had been fenced in, because here and there were a few feet of old fence still standing. All of the timber that was burned, (and which is in dispute,) was on the side walks adjoining the yard on Lewis and Sixth streets.
    William Mackay, on the part of the plaintiff, testified, that he was one of the firm of Westervelt & Mackay, ship builders of this city, and made the several appraisements with Mr. Bishop: that he has been engaged in the business of ship building for some twenty-five years past, and is acquainted with the course of business in this city. It is the practice of ship builders to keep their stock in their yards, and on the side walks, and in the street in the vicinity. Such has been the practice as long as the witness can remember.
    (This evidence of practice was objected to as before.)
    Being cross-examined, he testified: the timbers, the damage to which is valued at $1160, lay on the sidewalk in seventh street, and the ends of some of the timber laid in the yard and some projected over the side walk, part projected inside and part outside of the fence, (was partly in the yard.) Cannot now say what proportion of it did project in the yard. There was no fence; the timber that projected and which was on the side walk, did not form a fence or enclosure. It was part of the plaintiff’s stock. The yard was not enclosed; there might have been a few boards nailed to posts here and there at intervals.
    William E. Kellogg, the secretary of the company, on the part of the defendants, testified, that Mr. Webb and the president of the company, adjusted the loss on the office which was burnt at $400. That Webb signed a paper indorsed by the witness on the first appraisement, in these words, viz.:
    “ I hereby limit the loss under my policy for lumber in the yard, to five hundred and sixty dollars, having received from another source the difference between that amount and the twelve hundred and ten dollars claimed as loss for lumber in the yard as per the within appraisement.
    New York, May 18th, 1848.”
    That witness was present at the conversation between Mr. Webb and the president respecting this deduction of $650. Mr. Webb stated, that Howland & Aspinwall had received payment from one of the Fire Insurance Companies damage claimed by them upon policies upon their two steam-ships which was then building for them, and that they had given to him a part of the amount so received by them; and he stated that the money so received from another source, and witness believed it was under or from Howland <fc Aspinwall, had been to cover part of the items composing the sum of $1210. That of the damage of stock in the yard amounting to $1210, he had received $650 from Howland & Aspinwall, and that he would only claim for the balance of that item, viz., $560. He withdrew his claims for the six capstans contained in that schedule. The only subject of dispute was the timber in the street; the other matters were all settled.

      Being cross-examined, the witness says : My impression was that Mr. Webb had procured payment for the damage to the six capstans from Howland <fc Aspinwall, or the parties for whom he was building the steamers. I understood that the claim for the capstans was included in the $650, and that it was withdrawn by Mr. Webb. The president agreed to pay him for all his claim except the lumber in the street.
    Being shown the endorsement upon the appraisement by which the plaintiff limited his claim to $560 he says: My recollection is that the six capstans were included in the amount therein referred to as having been received from another source. I so understood it, and that it was a part of the $650, withdrawn from the claim of $1210.
    Thomas W. Thorn, the president of the company, testified, on the part of the defendants, that Mr. Webb and he agreed upon the appraisers. After the appraisements were handed to witness, he had another conversation with Mr. Webb, who in the course of it said he had received from Howland <fc Aspinwall a sum of money on account of the damage to their two steamers. Witness cannot say what the amount was, but it strikes him it was over $2000 from them. The result of the conversation was, that he agreed to deduct from the claim of $1210, the sum of $650. Witness understood he had received his pay from H. <fc A. for the capstans and all the manufactured timber for those ships. He limited his claim for the balance to $560. He gave up the claim for the capstans. The only thing about which we differed was the timber on the street. He understood that the $650 covered all the work upon timber or lumber for the ships then building for H. & A. After they had adjusted the other claims, witness told Webb that he would not pay him for the timber on the side walks in the street. Witness offered to pay Webb the sum of $2760, viz. for timber in the yard, $560; moulds and patterns, $300 ; treenails, $500 ; blocks, falls and tools, $500; office, $400; on his draughts, &c., $500.
    It was then shown that the defendants tendered to the plaintiff the $2760, with interest, and the costs of suit, in September, 1848; and the plaintiff received the same on account.

      Joseph Bishop, being re-called by the plaintiff, testified (the counsel for the defendant objecting, and the objection being overruled,) that he and Mackay made a separate estimate of the various items of the damage forming the sum of $650, included in the $1210. He identified a paper shown to him as the original, made by him and Mackay at the time, and it was read to the jury as follows ;

    That Webb was then building the steam ships Panama and California, at the foot of Sixth and Seventh streets, for How-land & Aspinwall, and was also building the steam ship Cherokee, at the foot of Third street.
    The court charged the jury that the principal question between the parties was whether the damage to the stock lying outside of the yard, and amounting to $1160, was covered by the policy, and for the purpose of the trial, the court instructed them that the policy did extend to and cover the damage to such stock.
    The other question in dispute relates to the damage to the six capstans. The defendants insist that the capstans are not covered by the policy, and if they be, that the damage thereto was included in the sums received by Mr. Webb from other sources. The court instructed the jury that the policy did extend to and protect the capstans, and submitted to the jury the questions of fact, whether the damage to the capstans had been made good to the plaintiffs as insisted by the defendants. He directed the jury in case they found the question in favor of the plaintiff to find a verdict for the sum of $1500, otherwise to find a verdict for the sum of $1250. (The counsel on both sides having agreed to adjust the precise amount of the claim after the construction of the policy had been settled by the court.) The court further, at the request of the defendant’s counsel, charged the jury that if, on the evidence, they believed the plaintiff withdrew his claim for the capstans, having received the value thereof under the policies effected by the owners of the vessels, though they were not included in the items making up the amount of $650, the plaintiff was not entitled to reassert his claim or to recover for them.
    The jury found a verdict for the plaintiff for $1500 damages.
    The defendants moved for a new trial.

      J. H. Lee and J. R. Whiting, for the defendants.

      F. B. Cutting, for the plaintiff.
   By the Court. Oakley, Ch. J.

All the claims arising from this loss, were amicably settled between the parties, except the plaintiff’s claim for the capstans and for the timber situated on the side walks adjacent to the premises called the ship yard. At the trial, the inquiry as to the capstans was two-fold; first, whether they were within the policy; and second, whether the plaintiff had been paid his loss in that respect by the owners of the ships which he was building, and for which the capstans were preparing. The judge held at the trial, that they were within the terms of the policy, as timber in process of being wrought into vessels; and this was undoubtedly correct. The question as to the plaintiff’s having received his loss upon the capstans from another source, was submitted to the jury, who were instructed, in accordance with the defendants’ request, that if he had so received it, he could not recover it from them. The jury found that the plaintiff had not received this portion of his loss from any quarter, and we see no reason to interfere with their conclusion.

■ The main question in the case, arises on the other part of the claim, and is, whether the timber on the side walks was within the stock insured by the policy. • The defendants contend that the risk is confined expressly to timber in the yard as bounded by Sixth and Seventh streets, Lewis street, and the East river; and that the court is to consider the sides of the streets and the margin of the river, as having been deemed the boundaries of the yard, as if the words to be construed were found in a conveyance of land.

The plaintiff’s premises were an unfenced yard. Some fence remained along portions of the yard adjacent to the street, while along other portions there was none. The plaintiff offered to prove, and did prove, that it was usual for the owners of ship yards in this city, to keep their stock of timber on the side walks and in the streets in the vicinity of their yards, as much so as within the yards. It further appeared that the ends of some of the sticks of timber, embraced in the appraisal as timber outside of the plaintiff’s inclosure, in fact projected into the inclosure, and across the line where the fence had formerly been. This testimony was objected to by the defendants, but it was received by the judge, and it was properly admitted. The object of the evidence of usage, (as it is called,) in these cases, is to ascertain what is the meaning of the language used by the parties in their contract; whether by the words “ stock of ship timber in a ship yard,” was meant a yard bounded by lines exactly defined, and limited by streets or other lineal land-marks, or a yard as it was in fact used by ship builders in conducting their business.

There was no good objection to the evidence offered on this point; and it being uncontradicted, it was sufficient to establish the usage, and to prove that a ship yard embraces the ground adjoining the inclosure, so far as it is used for keeping the stock of ship timber there provided for use.

There is another point of difficulty to the defendants, if the usage were excluded: viz,, whether the insurance is at all confined to stock in the plaintiff’s yard. On reading the policy, it will be perceived that there is no such limitation in the clause relating to the stock of ship timber, &.C., on which $3500 were underwritten ; and three new lines, with as many distinct subjects of insurance, intervene before the yard is mentioned.

It is a serious question whether the yard, as thus mentioned, applies at all to the first subject insured, and if it were necessary to decide the point, we should be inclined to hold that it does not. We are satisfied, however, that the verdict should be maintained on the other ground, and the motion for a new trial must be denied.


text:
    Gilbert and others v. Havemeyer and others. The same v. Evans.
    The statute relative to opening streets in the city of New York, confers upon the commissioners of estimate and assessment, the power to assess an occupant of lands benefited by the improvement.
    An occupant is a person “ interested” in the lands which he possesses, within the meaning of the statute.
    Where commissioners of estimate and assessment described minutely a parcel of land assessed for benefit, and stated that it was owned by A., and was occupied by G., P. and T., and they assessed upon it, the sum of $123 ; Held, that this was a sufficient assessment not only of the lot, but of A. as owner, and of G. P. and T. as occupants or parties interested.

      Held also that it was to be presumed, from their assessing the owner and occupant jointly, for the entire sum, that the commissioners did not fully know the respective estates and interests of the parties.
    An assessment, on being confirmed, becomes a lien upon the lot assessed, and the owner and occupant, and each of them, becomes liable to pay the same. If it is not paid, on demand, the corporation may collect it by a warrant against the goods of the owner or occupant.
    The statute authorizes the corporation to appoint a collector, with power to levy an assessment upon the goods of the person assessed. •
    A warrant is not void because it directs the assessment to be collected of persons who may be occupying the premises, as well as of those assessed by name. It cannot be levied upon the goods of occupants who have not been assessed by name ; but the insertion of such a direction in the warrant will not prejudice those against whom it is properly issued.
    A warrant which omits to state the names of the persons assessed, is fatally defective.
    A warrant, issued for the collection of an assessment, should state when the assess- ' ment was confirmed by the supreme court; the names of the persons assessed, both owners and occupants, who have neglected to make payment; the amount of the assessment; and should describe the premises assessed. These particulars, if not contained in the warrant itself, should be inserted in the schedule forming a part of it.
    Tiie warrant should contain all the facts necessary to show that the person upon whose goods it is levied is liable to pay the sum claimed from him.
    (Before OAKLEy, Ch. J., and Vanderpoel and Sandford, J. J.)
    March 28;
    May 19, 1849.
    The first of the above suits was an action brought by the plaintiffs against the defendants, who were commissioners of estimate and assessments, in the matter of widening and opening William street, to recover damages for an alleged illegal levy upon and sale of their property. The second suit was brought against Evans the collector, who executed the warrant issued by the commissioners for the collection of the assessment.
    The action was commenced under the code, and the pleadings consisted of a complaint, answer and reply. The causes were heard upon the pleadings. The facts are as follows: The plaintiffs were the occupants of certain premises in John street, in the city of New York, which had been assessed by the defendants for the benefit and advantage of the widening and opening of William street, to the amount of $123. The reports of the commissioners of estimate and assessments contained a description of the premises in question, together with an allegation that the same were owned by Isaac Adriance, and were occupied by the plaintiffs, and had been assessed for benefit and advantage. The report of the commissioners was confirmed by the supreme court, May 14th, 1847.
    The assessment remaining unpaid, on the 16th of August, 1848, the defendants in the first suit issued their warrant to the defendant Evans, the collector appointed for that purpose by the corporation, which warrant was signed and sealed by them, and was as follows:
    “By William F. Havemeyer, Esq., Mayor, C. Crolius, Morris Franklin, Theo. R. De Forest and Edward Fitzgerald, Esq., aldermen of the city of New York, to Lemuel G. Evans of the fifth ward of said city. You are hereby commanded and required to demand and receive from the several persons named in the annexed list of return, or who may occupy the premises the sums of money set opposite their names, being the money assessed to them for widening and extending William street, which sum they have hitherto neglected or refused to pay, together with the interest and expenses thereon, and upon neglect or refusal of payment, you are hereby authorized and required to levy the said sums of money, with such interest and expenses, by distress and sale of the goods and chattels of the persons so assessed and named in said annexed list, or those who may occupy the premises and neglecting or refusing to pay the same, returning the overplus money (if any there should be) after deducting the sum or sums so assessed, with such interest and expenses and the charges of distress and sale, to the person so assessed, or to his or their legal representative. Given under our hands and seals, this 16th day of August, 1848.”
    Under the warrant thus issued, on the 4th October, 1848, the collector levied upon the merchandize of the plaintiffs, to the amount of $138 94, and took possession of the same, which was sold for the assessment in question.

      R. Mott, for the plaintiffs.

      A. J. Willard, for the defendants.
   By the Court. Sandford, J.

It is contended, that the statute, relative to opening streets in this city, does not confer upon the commissioners of estimate and assessment, the power to asses an occupant of lands supposed to be benefited by the improvement; or if it do, then that the assessment cannot be made on both the owner and occupant.

The first position is maintained on the omission of the word “occupant,” in the one hundred and seventy-eighth section, which regulates the proceedings of the commissioners ; and on the argument that unless they be lessees for long terms, occupants cannot in the nature of things, derive much benefit from a street opening.

The argument from the degree of benefit, is quite as strong, against the propriety of assessing occupants for the expense of constructing sewers, and pitching and paving streets under the one hundred and seventy-fifth section; and against the second assessment which the corporation, by section one hundred and eighty-five, may make on opening streets; (in both of which they are named;) as it is against assessing them by the commissioners of estimate and assessment.

On examining the one hundred and seventy-eighth section with much care, we are satisfied that the plaintiffs’ construction is erroneous in both of the positions assumed. The assessment for benefit, is to be made upon “ the owner or owners, lessee or lessees, parties and persons respectively, who may be interested in or entitled unto the lands” benefited and lying within the apparent limits. The same language, substantially, is used in respect of lands of which a part is taken for the street, and the residue is benefited more than the value of such part.

The section, both in respect of assessments for benefit and awards for damage, includes every possible interest in the lands benefited, and in those taken for the public use. An occupant is a person '• interested in” the lands which he possesses.

In every case where the respective estates and interests of the owners and parties interested are unknown or not fully known to the commissioners, the section permits them to assess upon the owners and proprietors generally of such lands and parties interested therein the sum to be allowed and paid by them in respect of the whole estate and interest of all persons in the respective parcels assessed, without specifying the estates or interests of any of the persons so assessed. The sum is to be assessed upon the owners and persons interested; not upon either alone to the exclusion of the other.

In this case, the commissioners described minutely the parcel assessed for benefit, stated that it was owned by Isaac Adriance, and was occupied by Gilbert, Prentiss and Tuttle, (the present plaintiffs,) and they assessed upon it one hundred and twenty-three dollars.

This we consider a sufficient assessment not only of the lot, but of Adriance as owner, and of the plaintiffs as occupants or parties interested. The commissioners were public officers, and we are bound to assume from their assessing the owner and occupant jointly for the entire sum, that they did not fully know the respective estates and interests of the parties.

The assessment was therefore valid, and on being confirmed, became a lien upon the lot assessed, and the owner and occupant and each of them, by section one hundred and eighty-sixi became liable to pay the same. If it were not paid on demand, the corporation could collect it by a warrant against the goods of the owner or occupant.

It remains to consider the several objections made to the warrant, under which the collector seized the plaintiffs’ goods.

1. It is said the statute does not authorize the corporation to appoint any person collector, with authority to levy the assessment on the goods of the party assessed. We decided that there was no force in this objection, in the recent case of Wetmore v. Campbell, which arose on the collection of a sewer assessment by warrant. The same point was decided by the late supreme court, upon a statute precisely like the one in question. (Trustees of Rochester v. Symonds, 7 Wend. 392, 395.)

2. The warrant, it is said, is void, because it directs the collection to be made of persons who may be occupying the premises, as well as of those assessed by name. We held in Wetmore v. Campbell, that the warrant could not be levied upon the goods of occupants who had not been assessed by name; but the insertion of this direction in the warrant, does not prejudice those against whom it is properly issued. As to all others, the officer is bound to disregard it; and if disregarded, it will hurt no one. If it were obeyed by the officer, the persons actually assessed, could sustain no injury. An idea was suggested, on the argument, that the warrant directed the over-plus to be returned to one person, when it might have been made by a sale of the goods of another; but this is wholly un founded. The collector is commanded to return any overplus, to the “ persons so assessed,” being the persons upon whom he is to levy the assessment. If he levy upon the occupant, he must return the overplus to him; and payment to the owner assessed, would not discharge the collector.

3. It is insisted that the warrant is void on its face, and does not protect even the officer, because it shows no jurisdiction or authority to issue it.

This is clearly erroneous. The statute conferred jurisdiction upon the mayor and four aldermen, to issue such a warrant as this, for an unpaid assessment imposed on widening a street; and the fact that there was such an assessment, and that payment had been refused, is set forth in the warrant. (Savacool v. Boughton, 5 Wend. 170 ; Trustees of Rochester v. Symonds, before cited.) It shows-that a legal and valid charge has been created, and by what tribunal or authority.

4. The only difficulty of a serious nature, remains to be considered. The warrant does not set forth that the charge was made upon or against the plaintiffs. So far as the warrant is stated in the pleadings, it contains no reference to the premises assessed, nor does it state what persons were assessed. In the suit against the collector, it is expressly alleged that the plaintiffs’ names were not mentioned in the list or return annexed to the warrant; so that there is no room for inference, by connecting the warrant with the valid assessment, if inference could be legitimately resorted to in its support.

In the suit against the mayor and aldermen, the warrant itself is set forth, containing a reference to a list annexed; but the list is not set forth, and it does not appear that the plaintiffs were named in the list.

This is a fatal defect in the warrant; and although it is unfortunate that the plaintiffs should thus recover back a valid assessment, which they were liable to pay, and for which a warrant was issuable; they cannot be subjected to pay it by a process which does not refer to them either by name or by a sufficient description.

Besides the matters contained in the warrant set forth in these pleadings, it should state when the assessment was confirmed by the supreme court, the names of the persons assessed, both owners and occupants, who have neglected to make payment, the premises assessed (by some brief but .intelligible description,) and the amount of the assessment. There may be other matters necessary to be stated, to which our attention has not been directed. Those enumerated, we are confident ought to be inserted in the warrant itself, or in the schedule forming a part of it. The warrant should contain all the facts necessary to show that the person upon whose goods it was levied, is liable to pay the sum claimed from him.

Judgment for the plaintiffs.


text:
    Meakings v. Cromwell and others.

    Where a testator, by his will, after giving to his wife the rents of certain premises during her life, devised as follows: “ after her death, the house and lot, the corner of Amity and Greene streets, to be sold, and the net proceeds equally divided between B. H. O., J. H. O., and their sister C. O., share and share alikeHeld, that a power in the executors to sell the premises, after the death of the widow, was to be implied.

      Held also, that an execution of such power by one of several executors, the others not having qualified, was valid.
    Whenever a power is given, in a will, to sell lands, without expressly naming a donee of the power, and the proceeds of the sale are to go to pay debts or legacies, or to be distributed, the power vests in the executors, unless a contrary intent appears.
    Such an implication is much strengthened by the circumstance that two of the persons who are the objects of the testator’s bounty, and who are beneficially interested in the execution of the power, are named as executors.
    ‘The nominal consideration of one dollar, expressed in a deed, is enough to sustain the deed, so as to pass the legal estate. The question whether such conveyance was fraudulent in fact, cannot be raised in the action of ejectment to try the legal title.
    (Before Oakley Ch. J., and Vanderpoel, J.)
    May 19, 1849.
    Ejectment for a lot of land at the comer of Amity and Greene streets, in the city of New York. The cause was tried in June, 1848, before Oakley, Ch. J., without a jury, when a verdict was found for the defendants. The facts are sufficiently stated in the opinion of the court.

      Knox and Mason, and E. Sandford, for the plaintiff.

      C. T. Cromwell and G. L. Isham, for the defendants.

         Judge Sanbford having been consulted on this will, before he came to the bench, did not sit in this case.

   By the Court. Oakley, Ch. J.

This is an action of ejectment, brought by Meakings against Cromwell and his tenants, to recover possession of the house and lot at the comer of Amity and Greene streets, in this city.

Both parties claim title under Benjamin Hyde, who was seised in fee of the premises, in 1833, and being so seised, made a will in due form of law, to pass real estate, and by that will, after giving to his wife the rents of the premises in dispute during her life, devised as follows: “ after her death, (of his wife,) the house and lot the corner of Amity and Greene streets, to be sold, and the net proceeds equally divided between Benjamin Hyde Old, Joshua Hyde Old, and their sister, Caroline Old, share and share alike.” These were the nephews and niece of the testator. The will then proceeded to appoint Jane Parks Meakings, Benjamin H. Meakings, Joshua Hyde Old, and Benjamin Hyde Old, his executors and executrix. At the time of making the will, these nephews and his niece were aliens ; the nephews residing in this country, with the testator, and Caroline residing in England, where she has always lived, and now resides. After making the will, and prior to the death of the testator, Benamin Hyde Old, one of the nephews, died. The testator died in 1835, leaving his will unrevoked, the nephew and niece being still aliens.

Letters testamentary were granted on the will, to Jane Parker Meakings alone, (the other executors not having qualified,) and in July, 1847, a deed was executed by her, as executrix, to Richard Reed; and Reed, in October, 1847, conveyed by warranty deed to Cromwell, under which deed he claims title.

The plaintiff, Meakings, claims title by virtue of a quit-claim deed to him from Joshua Hyde Old.

On the argument, several questions were raised on the plaiutiff’s title, some of which are not without difficulty. The view that we have taken of the case, renders it unnecessary to consider those questions. If the grounds on which we are about to dispose of the case shall prove to be untenable, those questions will still be open to the defendant.

The deed of Jane Parks Meakings was executed, under the idea that a power to sell the premises in question, is to be implied in the executrix.

This presents the questions :

1st. Whether there is such implied power under the will; and

2nd. Whether it was well executed.

We have looked at all the cases cited by counsel on the argument, and we have come to the conclusion that there is a power implied in the executors to sell; and that its execution by the executrix, who alone has qualified, is valid.

The authorities are collected in Sugden on Powers, page 153, (Ed. 1847). Without going minutely into these cases, we think there is clearly to be derived from them this principle, that whenever a power is given, in a will, to sell lands, without expressly naming a donee of the power, and the proceeds of the sale are to go to pay debts or legacies, or to be distributed, then the power vests in the executors, unless a contrary intent appears.

The cases in 2 Leon. 220, and 2 Dali. 223, are very like the present; and although they are not fully reported, the court seems to have considered the principle as very clear. In the case in Leonard, the proceeds of land ordered to be distributed, are considered in the nature of legacies, and the payment of legacies being among the appropriate duties of an executor, the power to sell lands for such purposes, has always been held to vest in him by the implied intent of the testator.

This rule, as I have above stated it, is clearly laid down in the court of errors, in Bogert v. Hertell, (4 Hill, 500,) where Justice Nelson says, “it is settled law, since the year books, that a power, given in a will, to sell land, for the purpose of paying debts and legacies, or for making division of the proceeds, without naming the donee, will vest in the executors by implication.”

In this will, such an implication is, in our judgment, much strengthened by the circumstance that the two nephews, who were the objects of the testator’s bounty, and who resided in this country, are named as executors. They were beneficially interested in the execution of the power; and it is a strong ground for inferring the intent of the testator, that they should execute the power of selling who were to receive a portion of the proceeds, and who, therefore, would have every inducement to see that the power should be faithfully executed.

There seems, indeed, to have been little else for the executors to do, under this will, but to carry out the testator’s intention in regard to his nephews and niece, who, as aliens, being incapable of taking and holding the lands under a devise, were intended to have virtually the same thing, under a bequest of the proceeds in the nature of legacies, which they might take. The proceeds of the land, here come in the place of legacies, and were clearly intended as such.

The object, in all these cases, is to arrive at the intention of the testator; and if the intention can be fairly ascertained from the whole will, it must be carried out. Now, looking at this will, and seeing that the purpose of the testator was to convert the house and lot in question, into money, for distribution among those for whom he wished to provide, and who could not avail themselves of the provision in any other form; and that for the general purpose of executing his will, he named, (among others,) as his executors, the distributees of the fund, to be created by the sale of the land; we cannot doubt that it was his intent that his executors should have the power, to carry his will, in this respect, into effect.

It was contended on the argument by the plaintiff’s counsel, that this case falls within that section of the revised statutes (vol. 1, 734, § 100,) which provides, that when the testator omits to designate who shall execute a power in a will, its execution shall devolve upon the court of chancery. It was an ordinary exercise of the jurisdiction of that court, to appoint a trustee to execute a trust or power, to prevent a failure of it, in cases where no trustee was named or designated. We think the intent of the statute, was nothing more than to regulate and fix by law, what had been merely the practice of the court.

The court of chancery always upheld the doctrine of implied powers in executors to sell land, when such implication could he made according to the intent of the testator. We think an implied designation is sufficient; and that it was not intended by the statute, to abolish the whole doctrine of implied powers in a will. Indeed, trusts by implication of law, in wills, are expressly preserved by 2 R. S. 135, § 71.

The execution of the power, by one of the several executors, the others not having qualified, is valid. (Ogden v. Smith, 2 Paige, 195. Roseboom v. Mosher, 2 Denio, 61.)

The consideration expressed in the deed of the executrix, is one dollar. It was contended, that this execution of the power was void, as being fraudulent upon its face. The nominal consideration of one dollar is enough to sustain the deed, so as to pass the legal estate. The question whether it was a fraudulent execution in the action of ejectment, to try the legal title; and especially in this case, as no point of that kind was made at the trial.

The court, as the case comes before us, cannot undertake to determine whether there was any actual fraudulent intent, on the part of the executrix, in executing the power of sale; and we cannot say that a deed, with a nominal consideration, executed under such a power of sale, is, in judgment of law, fraudulent and void. An adequate consideration, in fact, may be shown to have been actually paid. And we probably ought to infer such to be the case; particularly as against the present defendant, who, for aught that appears, was a bona fide purchaser, and for a full consideration.

Judgment must be entered for the defendants.


author: By the Court. Vanderpoel, J.

text:
    Murtha v. Walters.
    The affidavit that the justice before whom a suit is pending, is a material and necessary witness for the defendant; must state facts and circumstances, clearly showing that the justice’s testimony is indispensable.
    The opinion of the party, with facts that show the justice might be a material witness, but which do not show him to be a necessary witness, are not sufficient to require him to enter a discontinuance.
    Decided Feb. 24, 1849.
    Appeal from one of the justice’s courts. Murtha sued Walters for use and occupation. Walters thereupon prepared an affidavit, setting forth that the justice before whom the suit was pending, was a necessary and material witness for him, and that he could not safely proceed to trial without the testimony of the justice; that the same cause of action had been tried between the same parties a few days previous, and submitted to the same justice upon the merits; who after deliberation gave judgment for the defendant in that former suit. The defendant offered to make oath to the affidavit, and asked the justice to receive it and enter judgment of discontinuance. The justice refused to administer the oath, proceeded to try the cause, and gave judgment for the plaintiff; upon which Walters appealed.

      J. H. Ehle, for the appellant.

      G. Defandorf, for the respondent.
   By the Court. Vanderpoel, J.

The justice was right in refusing to render judgment of discontinuance in this case. Before he is authorized to do so, he must be satisfied that he is a material witness, and that without his testimony, the defendant cannot safely proceed to trial. (Laws of 1838, p. 232, § 1.)

We do not mean to say that we would not interfere, if a case were presented, where the affidavit clearly showed the justice to be an indispensable witness. We do not think the justice would be justified in opposing his own opinion as to his materiality to facts and circumstances in the affidavit, clearly showing him to be material. But we have no hesitation in saying, that the'affidavit or statement here offered, did not show the justice to be a material witness. If the cause had before been tried before the same magistrate, and was finally submitted to him, these facts could be easily proved without the oath of the justice. His minutes and the clerk of the court could show the trial and judgment, and all those present at the trial could have established the fact of its final submission to him, on the merits. The legislature could not have intended that too great facilities should be given to defendants to procure the discontinuance of actions against them, on the ground of the materiality of justices as witnesses. The affidavit tendered must clearly and indubitably, by the facts it states, and not as mere matter of opinion, show the justice to be an indispensable witness for the defendant.

As the affidavit, if sworn to, would have been insufficient, the justice did not commit a fatal error by refusing to administer the oath to the defendant. The judgment must be affirmed.