text:
    John H. Lockwood, plaintiff, vs. James R. Cullin, defendant.
    1. In equity, generally, a husband may make a gift to his wife, inter vivos; and such gift may he made with or without the intervention of trustees. It need not he evidenced or made by formal deed of trust or of gift, or even by any formal writing, but may be by mere acts and declarations; and if necessary, the court will regard the husband, in such cases, as trustee for the wife.
    2. Such rule in equity is not abrogated by the acts of the legislature, of 1848 and 1849, “ for the more effectual protection of the property of married women,” notwithstanding they declare that “ it shall be lawful for any married female to receive * * * * from any person other than her husband."

      3. The decisions which hold that there must he something on the face of the instrument transferring property to a married woman indicating the intention of the giver to vest the property in the donee as her sole and separate estate, and to exclude the husband from any participation therein, have no application where the husband is himself the giver, during coverture. The hare fact of his making the gift is as strong evidence of his intent that it shall he the sole and separate property of his wife as any declaration in writing would be.
    4. Even if the wife had not the full disposition of property thus transferred to her as her sole and separate property, without the assent or concurrence of her husband, yet where the husband stands by and sees his wife sign and deliver an assignment of such property to another, without objection, this is sufficient evidence of his assent and concurrence.
    5. As under the acts of 1848,1849,1860 and 1862, a married woman can carry on business on her own separate account, and a stranger can set her up in business, a fortiori her husband can set her up in business on such account.
    6. Having the right to carry on business on her own account, she has as much right to use the goods or money given her by her husband,'in carrying on her business as she has to keep them in her possession, and make personal use thereof. Her employment of her husband, as her agent, will not affect any rights which she would have had if she had employed a stranger, instead.
    7. The principles above stated are applicable to cases arising between a married woman, or her assignees, and a debtor owing a debt claimed to be her separate property. Where the rights of creditors of the husband, or wife, or of the particular business, intervene, different principles may prevail.
    Before Monem, Garvin and Jones, JJ.)
    Heard February —, 1866;
    decided -, 1866.
    This action was brought on a special written agreement, given below, to recover certain annual subscriptions therein mentioned. In 1857, the firm of James Henderson & Co. composed of James Henderson and the plaintiffs, carried on the business entitled a “ Protective Trade and Collecting Agency.” One branch of this business was to obtain information concerning persons and impart such information to the subscribers to the agency. The firm had a book prepared, containing a list of names up to the 1st October, 1858.' It had a form of an agreement prepared, which was as follows ;
    “We, the undersigued subscribers to James Henderson & Co.’s Protective Tradfe and Collecting Agency, hereby acknowledge having received from said Henderson & Co. for our exclusive use, a book containing a list of names up to October 1, 1858, and it is expressly agreed between the undersigned subscribers and said Henderson •& Co. that the information contained in said book, and all information received from said agenpy, shall be held as strictly confidential, and that said book shall be returned whenever our subscription terminates, and no subscription shall be considered terminated until this said book is returned to Henderson & Co.”
    The defendant, Guilin, had signed this form of agreement on ifovember 30, 1858. The plaintiff’s testimony is to -the effect that the hook mentioned in this agreement was delivered to the defendant. This is contradicted by the defendant’s testimony.
    The defendant, at various times between November 30,1858, and November 20,1860, obtained from the agency information concerning the responsibility of various parties. Another book was published by the agency about February 1, 1860, which was given to the defendant sometime in 1860, and. retained by him until May, 1864. The first book has never been returned to James Henderson & Co.
    There was evidence on behalf of the defendant to the effect ■ that the defendant never used either of the books, or sent to the agency for information after November, 1860, and that in the latter part of 1860, or 1861, the defendant notified James Henderson that he did not wish to continue his subscription. The yearly subscription was $30. This action was brought on the foregoing agreement, to. recover for six years’ subscription, from November 30, 1858, to November 30,1864, less the amount of the first year’s subscription ($30.)
    The plaintiff, by his complaint and proof, made title to the claim through assignments, in the words and figures following :
    “For value received, we hereby sell, assign and- transfer all our interest in the foregoing books, and all subscriptions due and to become due therefor, to J ohn H. Scott.
    March 10th, 1862. Jas. Hendebson & Co.”
    2d. An assignment as follows :
    “ For value received, I hereby sell, assign and transfer all my right, title and interest, in and to the foregoing books, and to all subscriptions due and to become due thereon, to Phebe A. Henderson and John H. Lockwoood.
    March 10th, 1862. J ohn H. Scott.”
    And proof that after March 10, 1862, the firm of James Henderson & Co. was composed of the plaintiff and Mrs.-Phebe A. Henderson, and the business was carried on by those two persons under that firm name. James Henderson directed and managed the business for his wife Phebe A. as her agent, without her taking any active part in the business, or giving any personal attention to it.
    3d. A bill as follows :
    “ Mr. James B. Guilin to James Henderson & Co. Dr. To six years’ subscription from Nov. 30th, 1858, to November,
    30th, 1864, at $30 per annum,......$180 00
    Cr. By cash on account,......... 30 00
    Indorsed as follows : $150 0Ó
    For value received, I hereby sell, assign and transfer all my interest in and to the within claim to John H. Lockwood.
    Dated New York, May, 1864. P. A. Henderson.”
    , Phebe A. Henderson, during all this time, was the wife of James Henderson, who stood by and saw her sign and deliver the last above assignment, without objecting.
    The answer puts in issue the plaintiff’s title, and sets up as affirmative defenses, that the subscription was but for a single year ; that Henderson & Co. had broken the contract on their part, in that they had failed and refused to give information when demanded; that in -consequence of such breach the defendant had notified the firm that he desired to discontinue his subscription; that Henderson & Co. never had any plan or system for obtaining information, and that this pretended business was a mere fraudulent scheme to obtain money.
    There was evidence tending to support these affirmative defenses, except the last one; and there was also evidence tending to disprove them.
    Upon the closing of the testimony on both-sides, the defendant’s counsel moved to dismiss the case, on the ground, among others, that it appearing that Phebe A. Henderson was a married woman, and the subject of the action not appearing to be part of any separate estate of hers, or to result from, or to be necessary to any trade or business carried on by her separately, an assignment by her, of her interest in the claim, to the plaintiff, without the assent or authority of her thusband, was invalid.

      The motion was granted, and the complaint dismissed. An exception was taken, and the exception was ordered to be heard first at a general term.

      D. O. Birdsall, for the plaintiff.

      Arthur <& Oar diner, for the defendant.
   By the Court,

Jones, J.

There are two distinct branches to this case. The one relating to the subscription earned prior to the assignment to Scott; the other relating to the claim for subscriptions subsequent to that period. As to the subscription earned prior to the assignment to Scott, that was a demand then due and owing. If this debt had been owing to an entire stranger, there is no question but that Mrs. Henderson, under the acts of 1848, 1849, 1860 and 1862, would, by an assignment thereof to her, by such stranger, have taken it as her sole and separate property, and would have had complete authority to assign it, not only without the consent, but without the knowledge of her husband.

If, then, the debt, by reason of the assignment to Scott, and the assignment by Scott to the plaintiff and Mrs. Henderson, is to be regarded as not coming from the husband to her, she had full authority to assign it, without the consent or knowledge of her husband. '

If, however, under all the circumstances, the debt is to be regarded as coming to her from her husband, then the acts of 1848, 1849, 1860 and 1862, have no application to the case, and her title to it as' her separate property, and her right to dispose of it, must depend on the principles of jurisprudence existing before the passage of these acts.

In equity the rule obtained that a husband might make a gift to his wife inter vivos, and that such gift might be made with or without the intervention of trustees ; that such gift need not be evidenced, or made, by any formal deed of trust or of gift, nor by any formal writing, but might be made and evidenced by acts and declarations ; that if necessary the court will regard the husband as trustee for the wife. (Neufville v. Thomson, 3 Edw. 92.)

In this case, I think the various assignments are amply sufficient to constitute a gift to the wife, as between husband and wife, of the matters assigned, as and for her sole and separate property.

It is true that there is nothing on the face of either of the assignments, indicating'that the intention of the giver was to vest the property in the wife as her sole and separate estate, and to exclude the husband from any participation therein. There is a line of decisions holding such an indication to be, ordinarily, necessary. That line of decisions, however, has no application where the husband is himself the giver, during coverture. The bare fact of his making the gift, is as strong evidence of his intent that it should be the sole and separate property of his wife, as any declaration in writing would be.

Thus, then, according to the equity law as it stood prior to 1848, and as it still stands, the assignments in this' case would vest the assigned property in the wife, as her sole and separate property.

The property then being her sole and separate property, she had the full power of disposition over it, without the assent or concurrence of her husband. (Powell v. Murray, 2 Edw. 635, cited from 642.) Even if this were not so, yet here the husband stood by and saw his wife sign and deliver •the assignment, without objection. This is sufficient evidence of his assent and concurrence. (Powell v. Murray, 10 Paige, 256.)

It may be suggested that inasmuch as the words of the acts of 1848 and >1849 are, It shall be lawful for any married female t.o receive * * * * from any person other than her husband,” those acts abrogate the equity rule above referred to. I think this is not the proper construction. The title of the act of 1848, (of which act that of 1849, is an amendation,) is “ An act for the more effectual protection of the property of married women.” The spirit of all the acts, as indicated by their titles and provisions, is to enlarge and not curtail the rights and privileges of married women in acquiring, holding, and disposing of property. . A construction then should not be given, which would take away rights and privileges enjoyed by married women, before the passage of those acts, since such construction would be in direct conflict with the general tenor and spirit of the legislation. If, however, such construction is impelled by direct, unambiguous words and expressions, the court must so construe the acts. But I think that the language of those acts does not imperatively call for such a construction. There are no negative words, making it unlawful for a wife to receive property from her husband in the manner, theretofore, recognized by equity. If, then, those acts take away such previously existing right of the wife, it must be by implication from the use of the words “other than her husband.” Now, although perhaps these words may be so construed as to prohibit the wife from receiving property from the husband, yet they are also capable of being construed as being inserted for the mere purpose of limiting the provisions of the act to property other than that received from the husband, leaving the transfer or gift of property, from the husband to the wife, to be effected, and the wife’s rights and powers over and in relation to such property to be regulated, according to the law as it stood, prior to the passage of the act.

This latter construction should be adopted under the rule that the spirit of the law may be referred to' in order to interpret words admitting of two meanings; (Beebee v. Griffing, 14 N. Y. Rep. 235;) and that the intention of the law giver is to be adduced from a view of the whole and every part of a statute to be taken and compared together, and the real intention when actually ascertained, will always prevail over the literal. (People v. Draper, 15 N. Y. Rep. 532.)

It is immaterial, then, whether this debt due from the defendant, came to the wife from her husband, or from a stranger. In either event the plaintiff obtained a good title through the wife’s assignment.

The plaintiff should not have been non suited as to the amount claimed to be due November 30, 1861.

This brings me to the second branch of the case, which .is as to the amount claimed to have become due subsequent to the assignments to and by Scott, and while. the business was carried on by the plaintiff and Phebe A. Henderson, Under the acts of 1848, 1849, 1860, and11862, it is perfectly clear that a married woman can carry on business on her own account, and that a stranger can set her up in business. It is, however, urged that a husband cannot set his wife up in business. I am unable to see why not. He can, as is seen above, give either money or goods to his wife, to be held by her as her separate property. After he has made the gift, it is no business of his, what she does with the goods. As the law allows her to carry on.business on her own account, she has as much power and right to use the goods or money given her by her husband in carrying on her business, as she has to keep them in her possession, and make personal use of them.

The tact that she employs her husband as an agent, does not affect rights which she would have if she had employed a stranger.

It must be understood that the remarks thus far are intended to apply only to cases arising between a married woman, or her assignees, and a debtor who is claimed to owe a debt which is alleged to be the separate property of the' married woman. It is not intended to apply them to cases where the rights of creditors of the husband or the wife, or of the business, intervene. In such cases all, or only part, or none- of the above principles may apply according to the facts and circumstances of each case.

There is an objection to the plaintiff’s right of recovery on this branch of. the case, remaining to be considered. This objection is that the original contract calling for the personal services of James Henderson, his assignees cannot perform the contract apd recover the stipulated compensation therefor.

. It is clear that if a man contracts to render personal services to another, he cannot by assigning his contract, or in any other way, force his employer to accept the services of some other person-. If he assigns his contract, it is a breach of it, and the employer may elect to consider it at an end, and recover damage for its breach. But it is equally clear that the employer may consent to have an assignee substituted in the place of the original employee, and that such substitute, upon performing the contract, will be entitled to recover the stipulated price therefor. Nor is it necessary that there should be an express consent; it may he implied from the employer with knowledge of the assignment standing by and seeing the work performed by the assignee.

The question that arises in this case, however, is whether an assignee of such a contract can go an and perform, "and recover the pay for the performance of the contract, in cases where the employer was ignorant of the assignment and of the fact that the work was being performed by the assignee ? I think he can, in those cases where all the conditions precedent to the pay, (except the one of the work being done by the original employee,) have been performed in a manner just as good and as satisfactory to the employer as if done by the original employee, and the employer has received all the expected benefit of the work. I see no reason why the employer should in such a case escape payment.

In the case at bar the contract was to pay $30 a year for the use of a certain book, and for receiving such information as the defendant asked for. The assignment did not interfere with the use cf the book, nor make such use less valuable, or less satisfactory. Since the making the assignment, the defendant has not asked for any information, other than that contained in the book. He did not know of the assignment; so that the fact of its having been made, did not cause him to cease making inquiries. On this motion we can only ascribe as a reason for his leaving, that he had no occasion to make inquiries.

It seems to me that the new firm has fully performed the contract of the old firm, and that the defendant has not been one whit injured hy the substitution of Phebe A. for James Henderson.

The defendant, by his contract, was to pay $30 a year for the use of the book, and for such additional information as he might require ; if he required no additional information, then of course he paid his $30 for the mere use of the book. Thus under the plaintiff’s evidence, as he did not require any Additional information after ¡November, 1860, he would have been obliged to pay the original firm of James Henderson & Co., (conceding no change to .have taken place in the members of the firm,) his annual subscription for the mere use of the book. According to the plaintiff’s evidence, he has used this same book during the term sued for, and I see no reason why the hare fact of there having been a change in the members of the firm should exonerate him from payment for such use.-

For these reasons, I think there was error in dismissing the complaint.

• The exception to the granting of the nonsuit must be sustained, the nonsuit must he set' aside, and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: J ones, J. 'McOmm, J. Robertson, Oh. J.

license: Public Domain

text:
    Alexander Irvin, plaintiff and appellant, vs. Frederick Wood et al. defendants and respondents.
    1. An opening in the sidewalk in a public street, communicating with a cellar or vault underneath, for whatever purpose used, made without proper authority, is, whether covered or uncovered, a public nuisance. Being so, the persons
    . who made, and those who continue, it are.liable for all injuries to individuals resulting from the street being rendered thereby less safe for its appropriate us.e, without regard to negligence on the part of such individuals.
    2. Those making or continuing a public nuisance in a highway are bound at their peril to keep such highway as safe as it would have been if the nuisan.ce were not there. Neither want of notice of the condition of the nuisance, nor the fact that they had entered into no obligation with any one to repair, will relieve them from responsibility.
    3. A person occupying premises adjoining-a sidewalk, in which there is an opening commonly used by the occupants of such premises, is liable for injuries resulting to another by falling through such opening, although at the time of the casualty, such opening was in the same condition, in every respect, that it was when the defendant entered into the occupancy of such premises, and the usual cover of it was fastened down over it, in the way in which arrangements were originally made for fastening it, and by the terms of the lease to him his lessor was bound to do all repairs to such premises,
    4. If such action be brought against a person to whom the lessor has transferred his title and assigned the lease, after it was made, while such premises are occupied by the tenants of the latter; the defendant will be liable for injuries resulting from an opening in the sidewalk used with such premises, although he may not originally have constructed it, if he continue it, and although such opening be provided with a proper cover fastened from below and controlled by the occupants of the premises, and the casualty occurred by reason of the negligence of such tenants.
    6. The enjoyment of what is a nuisance by a person having the right to use it, constitutes a continuance of it by him. The acquisition of the residuary interest in a term of years in premises to which a nuisance is attached, and the assignment of the right to the rents of such premises, under a sub-lease, by which tenants occupy such premises, renders the person acquiring such interest and light a continuer of such nuisance; upon the grounds, both that he receives rents therefor, and by becoming assignee of the reversion of a term of years in the premises, to which such nuisance is attached, although not on them, he acquires control over it, and is bound to abate it. (Robertson, Ch. J. dissenting.)
    6. The liability for personal injury occasioned by a nuisance which is continued by several persons, is joint as well as several, and one action may be brought against all of them together.
    7. It seetiis an action will lie against the continuers of a nuisance, without previous notice to discontinue it.
    8. Although the purchasers of premises upon which a nuisance exists, or of a right to rent paid for the use of such nuisance, may be responsible for any injury resulting from it, as a continuer of it, yet. the purchaser of premises, or of a right to rent therefor, where a nuisance exists adjoining the premises, is not liable for injury from such nuisance, unless it has become an appurtenance of the premises bought by him, and rent has been reserved for it as such. (Ter Robertson, Ch. J.)
    9. What would otherwise be a nuisance in or on a public highway, may become a legal easement therein, by grant or prescription, subject to the obligation of using it with due care, so as not permanently to interfere with the use of the highway, or cause injury to travelers upon it; and in such case, the owner of -the easement is only liable for Want of due care, and is not an insurer against injury to others by its use. (Ter Robertson, Ch. J.)
    10. In the absence of evidence that an easement in a piece of land which is a highway has been continually used as an appurtenance to adjoining premises, or has by grant been created appurtenant thereto, the mere use of such easement occasionally by the occupants of such adjoining premises, does not render the purchaser of the reversion of such premises, and of the right of rent thereto under a lease to such occupant, which does not specially demise such easement, liable for injury to a traveler on such highway by the apparatus designed for using such easement. {Per Robertson, Oh. J.)
    11. Dior can such purchaser be made liable in an action for damages by a nuisance where the complaint describes it as being on certain premises when it was on adjoining premises. {Per Robertson, Oh. J.)
    (Before Robertson, Oh. J. and McCtjnn and Jones, JJ.)
    Heard March 6,1866;
    decided-. 1866.
    This was an action brought for damages received by the plaintiff, by falling through an opening in the highway, communicating with a vault below, used by the tenants of adjoining premises for introducing coal and other articles. It was brought against the tenants and the assignee of the reversion of the lessor, which was a term of years, and of the right to the rents of such adjoining premises under a sub-lease to such tenants, which assignment was made after thé execution of such sub-lease and the occupancy by such tenants of such premises.
    The complaint alleged that in October, 1863, the defendants Woods as co-partners were the lessees and occupiers, and the defendant Fowler was the owner and lessor of certain premises with the. appurtenances in the city of Eew York, on a certain street (Broadway,) which was a common and public highway and in which said premises there was a hole or opening into the cellar or vault of and belonging to said premises. That the defendants wrongfully permitted the said hole to continue, and the same was so insufficiently constructed and covered that by means thereof, the plaintiff, while passing in and along said highway, unavoidably fell into said hole ; and then set forth the injury.
    The answer of the defendants Woods denied the allegations respecting the construction and covering of the hole, and also that for want of a proper and sufficient covering to, and construction of, the hole the plaintiff unavoidably fell into it. It then alleged, as a separate defense, that they occupied under a written lease from the defendant Fowler; that the hole was in the same condition, as to its construction and repair, and in every other respect, at the .time they entered into occupation as it was at the time of the casualty, and that at that time the cover to said hole was fastened as it was constructed to be fastened and that by the terms of the lease the defendant Eowler was to make all repairs.
    The answer of the defendant Fowler denies his ownership of the premises but alleges that he was the assignee of a lease made by certain parties who were the owners, to one Higgins, for the term of twenty-one years from May, 1859. That said Higgins sublet to the • defendants Woods for a term of five years from May, 1863, and subsequently in that month assigned to the defendant the lease made to him, (Higgins,) subject to the sub-lease so made to the Woods, and in June, 1863, assigned to him said sub-lease. The answer then claimed that on these facts he was improperly joined with the other defendants It then admitted that there was a hole for putting in coal, leading from the sidewalk in front of said premises into the vault, which was a part of the premises let to and occupied by the Woods, and that Broadway in front of said premises was a public highway ; but denied that the opening or vaults were excavated or constructed by him, and alleged that they were excavated and constructed before the demise to Higgins. The same answer further denies the allegation in the complaint as to the plaintiff’s falling in the hole, the circumstances connected therewith, and the consequences thereof ; also that the accident occurred while the premises were in his possession, occupation or ownership. It alleged that at the time of the letting to the Woods, and of the assignment to the defendant Fowler and down to the occurrence of the casualty, the said coal hole was provided with a good and substantial covering fastened from below, which coverings and fastenings and the access thereto were in the possession and under the control of the Woods ; that the casualty occurred by reason of the negligence of the Woods in uncovering the hole and carelessly re-covering it, and denied that the hole was badly or insufficiently constructed, or that the same, or the covering thereof, were out of repair up to the time of the use thereof by the said Woods just prior to the casualty, and claimed that if they were then put or left out of repair it was by the carelessness of the Woods.
    . On the trial the title of the defendant Fowler to the premises was shown to be as alleged in his answer, and the title and occupation of the defendants Woods, as alleged in their answer. It also appeared that the plaintiff, while in the lawful use of the sidewalk, fell into the hole in question without any fault or negligence on his part. The evidence tended strongly to show that the casualty occurred through the original defectiveness in the cover of the hole, the flanges being so near the centre of the cover as not to prevent its slipping and there was no groove in the sidewalk to receive it. It was proved that the Woods had shortly previous to the casualty used the hole to put coal into the vault.
    The fact that the hole was in front of the premises in question was not disputed; and it was admitted by the pleadings that Broadway was a public highway.
    It appeared by the' description in the lease to Higgins that the demised premises were bounded on the southeasterly side of Broadway, so as not to include the sidewalk. Ho license from the city authorities to make the hole in question was proven.
    On these facts the judge, before whom the cause was tried, dismissed the complaint as to all the defendants. The plaintiff excepted, and the exceptions were ordered to be heard at general term in the first instance.

      J. B. Brinsmade, for the plaintiff, (appellant.)

      S. P. Nash and Arthur & Gardiner, for the defendants, (respondents.)
   J ones, J.

Under the case of Congreve v. Smith, (18 N. Y. Rep. 79,) this coal hole, whether covered or uncovered, was a public nuisance. Being a public nuisance the persons who made or continued it are liable for all injuries to individuals resulting from the street or highway being thereby less safe for its appropriate use, there being no negligence by the parties injured. (Congreve v. Smith, 18 N. Y. Rep. 79. Creed v. Hartmann, 29 id. 591. Wendell v. Mayor, &c. of Troy, 39 Barb. 329.)

No question of negligence can arise. Those making or continuing a public nuisance are bound at their peril to keep the highway in which the nuisance is situated as safe' as it would have been if the nuisance were not there; and neither the fact that they had no notice of the condition of the nuisance, or the fact that they were under no obligations to repair, will relieve them of their liability. (Congreve v. Morgan, 18 N. Y. Rep. 84.) Under these authorities the affirmative defense in the answer of the Woods is invalid in law, except so far as it sets up as a defense that they have not continued the nuisance.

By the same authorities, the affirmative defenses in the answer of Fowler are invalid in law, except so far as it sets’ up as a defense that he is not a continuer of the nuisance ; since he clearly did not erect it.

Under these authorities, the allegations in the answer of the Woods, as to the condition of the hole, the fastening of the cover, and the obligation of Fowler to make repairs, constitute no defense.

By the same authorities, the allegation in the answer of the defendant Fowler, that the hole was not constructed by him, constitutes no defense if he continued it; and the allegations contained therein, as to the hole being provided with a good and substantial covering, fastened from below; as to the control thereof by the Woods; and as to the occurrence of the casualty by reason of the negligence of the Woods, constitute no defense. I am aware that it is stated in Davenport v. Ruckman, (10 Bosw, 37,) that a party is not liable, if) after parting with the premises, some one, without his assent, renders a nuisance previously existing therein dangerous. It is not necessary, in this case, to re-examine the correctness of this proposition, because Fowler had not parted with the premises at the time when the casualty occurred.

The defendant Fowler, however, raises the point, that as he was neither owner in fee nor occupier, he is not liable, and that as the premises of the demise whereof he is assignee, do not include the sidewalk, he, for that reason, is not liable. These matters, under the authority of the case of Davenport v. Ruckman, do not relieve him if he has continued the nuisance. In that case the injuries to the plaintiff were occasioned by a fall into an excavation. The excavation was a cellarway, below the level of the pavement, extending, on the sidewalk, six feet in front of the line of the street, with descending steps, to a cellarway in the front wall of the building. The defendant Ruckman, did not make the excavation, but was the assignee of a lease for twenty-five years of the premises behind it, into which the steps in it led, and by such lease became the owner of the buildings to be erected during the term. They were occupied at the time of the accident by a tenant of his, who agreed with him to put the premises in repair. The defendant, Ruckman, never repaired the premises, was frequently there to collect his rents, and paid his own. On these facts the court, (pp. 36, 37,) held that if Ruckman adopted the nuisance, he was liable as an insurer of all persons who passed over the opening, however carefully protected it might be. That was a decision, at general term, of this court, and binding in this case.

It results from the foregoing remarks, that if the defendants are. continuers of the nuisance in question, they are liable, under the evidence in this case.

If, then, there is evidence tending to show that they are such continuers, the judgment of dismissal of the complaint must be reversed. As to the defendants, Woods, there is evidence that this coal hole was attached to the premises occupied by them for the purpose of being used to put in coal, and that previous to the accident they had actually used the coal hole for the purpose of putting coal into their vaults. There can be no question but that the user of a nuisance by a person claiming a right to use it, constitutes a continuance of the nuisance by such person.

As to the defendant Fowler, he held the reversionary interest in a lease for the unexpired term ; he also was the holder and owner of the lease under which the defendants Woods occupied. These facts make him liable as a continuer of the nuisance, on the ground that he receives the rent reserved for the nuisance. He is also liable on the ground that he became the owner of the reversion of a term of years, with the nuisance thereon, and as such the nuisance was under his control, and he was bound to abate. The fact that there was a sub-demise made by Higgins, at the time he took the reversion, does not relieve him. He subsequently became the assignee, from the lessor Higgins, of the sub-demise. Although, perhaps, the nuisance was not, during the sub-lease, under his control, yet he became entitled to receive the rent which was reserved in part for the nuisance, and as he thereby took the benefits accruing to the lessor therefor, he also took the burthen imposed on the lessor by that lease, and the granting thereof, at least so far as nuisances are concerned.

These points were ruled in The King v. Pedley, (1 Adol. & Ellis, 822,) and Rogers v. Stewart, (5 Vermont Rep. 215.)

In Rogers v. Stewart, one Stephen's erected the nuisance, and then leased the premises having the nuisance thereon to the defendant Hayt, and then assigned the lease to the defendants Stewart & Phelps. The court held Stewart & Phelps liable.

In Davenport v. Ruckman, (ubi sup.) it was held that the nuisance in question, to wit, an area, being the mode of access to the lower part of the building as an appurtenance, and being used for such access, and Ruckman having let the premises having this appurtenance attached, he was liable, as having sanctioned and adopted the nuisance.

Upon this principle, Higgins would have been liable by reason of his lease to the Woods. This lease was assigned to the defendant Fowler. Fowler could not say that under this ' lease he would receive the profits reserved by it for the use of a nuisance which is sanctioned by it, without rendering himself liable by reason of such sanction of the nuisance. The case of Rogers v. Stewart, (5 Vermont Rep. 218,) holds that he cannot take this ground.

It may seem to be hard to hold persons liable as continuers of a nuisance, upon the simple ground of using it, or receiving-profit for its use, or purchasing the premises having the nuisance thereon, without such persons having any notice or knowledge thaf" the thing complained of is a nuisance. Such however is the law, in my view, and, I see no reason for altering, refining or modifying the law to meet supposed hard cases. It is no harder to hold a person to be a continuer under these circumstances, than it is to hold that an owner of land who contracts with a builder to build a house in a good, and substantial manner, is liable for a nuisance erected by such builder in the course of building the house, although such owner has no notice that such erection was a nuisance, on the mere ground that the work was done for him, and that he is to derive profit therefrom; and yet this is distinctly ruled in Congreve v. Smith, and Congreve v. Morgan, (18 N. Y. Rep. 79, 84.)

There are two points remaining. The defendant Fowler claims that he is improperly joined with the other defendants. The action proceeds on the theory that the defendants, in continuing the nuisance, are guilty of a tort; that being so, the liability is both several and joint, and the action is well brought against all who are jointly liable. It is not necessary to so bring it ¡ it may be brought against one only, but if brought against all, it is well brought, (Creed v. Hartmann, 29 N. Y. Rep. 291.)

The point that no action will lie against a continuer of a nuisance, without previous notice to discontinue the same, is not raised. If it had been raised, I think the reasoning of Judge Denio on this point, in Brown v. Cayuga and Susquehanna R. R. Co., (12 N. Y. Rep. 492,) shows conclusively, its invalidity.

The dismissal of this complaint should be set aside, and a new trial ordered. If, on such new trial, no evidence be adduced altering or contradicting the evidence before us, the plaintiff will be entitled to recover against all the defendants such damages as he has sustained by the injury.

Judgment of dismissal of complaint set aside, and new trial ordered, costs to abide the event.

'McOmm, J.

The authorities cited by the learned Chief Justice, in Davenport v. Ruckman, (10 Bosw, 37,) and by Mr. Justice Joses, in his opinion in this case, show that the. law is well settled in declaring these coal holes in the sidewalk, where they are negligently maintained, to be a nuisance; and it is quite as well settled that where a person grants a lease of premises and receives rent from the occupant thereof, he can be held liable if injury be sustained by a third person by reason of such -existing nuisance on the premises at the time he so lets the same. Such a rule of law is based upon the equitable principle that a pecuniary benefit is derived from the continuing nuisance. This principle is clearly defined in Anderson v. Dickie, (26 How. Pr. 117;) People v. Evans, (4 Denio, 129;) King v. Pedley, (1 Ad. & El. 822.) In the case before us, the defendant Fowler let the premises to the defendants, the Woods, for a term of five years, and was receiving a very large pecuniary benefit for the use of the same; he, therefore, became liable to the plaintiff in this action, under the rule laid down in the cases above alluded to, unless the theory propounded by the defendant Fowler be correct, to wit, that this coal slide, from the sidewalk to the.cellar or vault of the house, was not part of the appurtenances so leased to him ; and he relies upon this theory because, as he alleges, the sidewalk, being part of the highway, the owner or lessees of the property have no interest or. property in the same, and can derive no pecuniary benefit therefrom, and they are not, therefore, liable for negligently maintaining the same. After a careful examination of all the facts and circumstances surrounding this case, I am forced to the conclusion that it was an appurtenance to the premises, and, as such, placed there exclusively for the use and benefit of their owners and occupants.

The hole through which the plaintiff fell was an opening in the sidewalk, through which coals and other materials are commonly put, and which is intended for use by the occupants of the house, and to be kept in the cellar or vaults thereof.

Eow, before these vaults or slide holes can be built, compliance must be had with an ordinance of the croton, water board of this city. This ordinance requires that permission must be first had and obtained, and paid for, from that body; and, in addition to this, before such permission is granted, the owner of the vault and hole about to be erected, must agree to use it as an appurtenance to the house on which it fronts only. This being the case, it must be presumed that, before this vault, hole or coal slide was put up, permission- was so obtained from the proper authorities. The moment the permit is obtained, the vault and slide built, and it becomes useful and valuable to the owner and occupant of the premises, it not only becomes an appurtenance to the premises, but becomes one, for the safety of which the owners, occupants, and those benefited by it, are liable, and they are bound to keep it properly secured against danger and risk to strangers.

Moreover, at -the time Mr. Fowler rented the premises from Higgins, it is in evidence that he knew and saw this vault and coal slide, and he must have deemed it part of the premises. Indeed it cannot be admitted, for a moment, after examining the testimony, that it was not an appurtenance, and that Mr. Fowler let it as such to the Woods, and that he was receiving a pecuniary benefit from the use of the same. This brings the case under the ruling in the cases of The King v. Pedley, (1 Ad,. & El. 822;) Anderson v. Dickie, and People v. Erwin, (4 Denio, 129.) The defendants are clearly liable, and I, therefore, concur with Justice Jones in saying that a new trial should be granted, as against all the defendants.

Robertson, Oh. J.

I regret to differ from my associates as to the liability of the defendant Fowler. That must be governed by some principle entirely different from any regulating the liability of his co-defendants, because his connection with the source of injury to the plaintiff appears by the evidence to be entirely indirect, remote and passive, and can only be created by some legal presumption. Such a legal presumption arises where a party has purchased premises upon which a nuisance exists, which is suffered to continue after he becomes owner. (Rex v. Pedley, 1 Ad. & El. 828,) and generally where the owner of premises derives a profit from a nuisance upon, or appurtenant to such premises. (People v. Erwin, 4 Denio, 129. Anderson v. Dickie, 1 Rob. 244, and cases cited.) So, also, every one who, by design or culpable negligence, supplies the means or facilities for injuring another, and they are a cause of harm to him, is civilly responsible to the injured party for the consequences of his furnishing such instruments. (Gases cited in Anderson v. Dickie, ubi supra.) The defendant Fowler did not originate the nuisance complained of, or buy any land upon which it existed, nor did he in. any way furnish other parties with the means of injury, by which the plaintiff was damaged. Nor can he be made responsible to the latter for the injury received by him, unless, the cause of it was an appurtenance of the demised premises. The opening in the highway, which was such cause, did not pass to the lessees by the lease to them, unless it was an appurtenance to the demised premises, as it was not specifically demised therein, and one piece of land can not be appurtenant to another,

Notwithstanding land is used as a public highway, a private easement may exist in it, such as a right to a trench or ditch across it, covered by a bridge, either as a roadway or drain for adjoining lands, or to conduct a stream, and on navigable waters a temporary right of obstructing navigation by a bridge with a dam in it. Such private easement may be created by the same means, or in the same manner, in land used for a highway as in that not so used, and may be continued if it do not permanently obstruct such highway, or interfere with its safe use as such. It may be created, like every other easement, by grant from those entitled to make' it, which- may be evidenced presumptively by prescription, even as against the public. In cases of easements of the kind already mentioned, the responsibility of the owners is limited to due care only, in providing that the road remain in a safe condition to be traveled over, or that the obstructions be only temporary, and they do not become absolute insurers against injury, as where the highway is intermeddled with by subterranean excavations without authority, (Congreve v. Morgan, 18 N. Y. Rep. 84,) and therefore to be treated as nuisances.

The change of land, through which a subterranean passage has been made, ending in an opening on the surface of it, (by which articles may be introduced, or persons admitted into a building upon an adjoining piece of land,) into a highway, where a grant has been made to the owner of such adjoining land, of the right of maintaining such opening and passage" for such purpose, having the former protected by a sufficient covering, allowing the passage of travelers over it. U or is there any thing in such easement to prevent its grant after the land has become a highway, if made by the proper representatives of the public. Uor is there any thing to prevent the application of the ordinary presumption of a grant from prescription, to su.ch easement. Because its use, like that of a bridge over a highway, or its obstruction thereof, like the position of a draw of a bridge over a navigable stream, or the stoppage of a vehicle on a highway, is only temporary. Although care must be taken, after its use, to restore such highways to their ordinary safe condition, and the removal of any obstruction caused by such use. Under such restrictions, there is no more difficulty in the land used for the highway being a servient tenement, and the adjoining land a dominant one, than in the case of easements in any piece of land being appurtenant to an adjoining piece of land. ' If, however, rendered so appurtenant by grant or prescription, but only in such case, the purchaser of the adjoining land is, probably, liable for any injury arising from the use of such easement without using due care or precaution against injury. (See cases before cited, and Davenport v. Ruckman, 10 Bosw. ’20.)

In this case, however, there is no evidence before us of any grant or prescriptive use, time out of mind, of the opening in the street, which was the cause of the plaintiff’s injury, or of any thing else rendering its use an appurtenance of the adjoining buildings, and the supposed nuisance was not on the demised premises, as is alleged in the complaint. It only describes the street on which the premises were (Broadway) as being a highway, but alleges that there was an opening on the ■premises, by means of the insufficient covering of which the plaintiff was injured. This is not equivalent to an allegation of an opening in the highway, or its being appurtenant to the premises.

I am, therefore, satisfied that as to the defendant Fowler, the complaint should remain dismissed, and the judgment as to him remain affirmed.

         New York Central Railroad Co. v. The Buffalo and New York and Erie Railroad Co., (49 Hart. 602.)


author: Robebtson, Oh. J. McCunn, J.

text:
    Joseph Tyler, plaintiff and respondent, vs. The New Amsterdam Fire Insurance Company, defendants and appellants.
    1. Assuming that an insurance company can make a contract of insurance without a writing, and that the president or secretary are duly authorized to make one, any agreement, to be binding on the company, as such, must at least have all the elements of such a contract.
    2. There are at least five ingredients necessary, in a contract of insurance, viz. the subject matter; the risks insured against; the amount insured; the duration of the risk, and the premium- of insurance; and a contract deficient in any of these is incomplete. • ■
    8. A promise to insure, which wants those elements of a contract which consist of the risks insured against, and the duration of the insurance, is too vague and indefinite to be binding.
    Heard March 18, 1866;
    decided-, 1866.
    (Before Robertson, Oh. J., and McCunn and JoNes, JJ.)
    Appeal from a judgment entered on the verdict of a jury. The action was brought upon an alleged agreement, by parol, to insure a stock of goods in a woollen mill, at Franklin, New Jersey, for the sum of $2500, for one year from July 5, 1860. The fire occurred July 12, 1860, and the plaintiff’s loss exceeded the amount named in the policy.

      The facts in regard to the making of the agreement sued on, are stated in the opinions which follow.
    The jury found in favor of the plaintiff for the amount claimed, with interest.

      L. R. Marsh, for the appellant, defendant.
    I. The motion to dismiss the complaint at the close of the plaintiff’s proof should have been granted. 1. There was no proof of authority from the corporation to the president or secretary to make such a contract as was claimed; and it appeared affirmatively, by the plaintiff’s proof, that the secretary was the only party with whom Davis made the contract sued upon. 2. Such an authority could not be inferred. Neither the president nor secretary is, by any general law, the agent of an insurance company authorized to make and consummate contracts of insurance. The general rule is, that a corporate body can only act in the mode described by the law-creating it. (Dawes v. North River Ins. Co., 7 Cowen, 462.) 3. In the absence of any proof of delegating authority by the corporation upon any particular officer, it cannot he inferred that an insurance company has power to make contracts of insurance in any other way than by the action of its hoard of directors.
    II. The court below erred in denying a similar motion, after the charter of the defendants had been read.
    1. The defendants had no authority or power to make a verbal contract to insure like the one claimed here. The mode in which the defendants were authorized to insure is limited by law to a policy. See section 10, of the law of 1849, (Sess. L. 849, p. 441,) under which the defendants were chartered. 2. Article 15 of the charter declares : “ All policies of insurance issued by this company, shall be subscribed by the president, or in case of his absence or inability to act, by such other member of the board of directors as said hoard shall appoint for that purpose, and shall be countersigned by the secretary.” No other “ mode or manner of exercising” the power of making insurance is declared b.y the charter. See opinion of Gardner, J. in the Trustees of the First Baptist Church v. The Brooklyn Fire Ins. Co. (19 N. Y. Rep. 305.) An appeal is cited in Spitzer v. St. Mark’s Ins. Co., (6 Duer, 6; opinions of Hoffman and Slosson, JJ.) ' 3. The case now at bar differs, essentially, from the charter of the Brooklyn Eire Insurance Company, passed upon in Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., (ubi supra.) Here there is no general power to make contracts of insurance conferred by the charter; it prescribes the only mode and manner of exercising the power of making insurance; to wit, by policy subscribed and countersigned:
    2. The 14th article of the chapter having required subscription and countersigning, neither the president nor the secretary had the power to dispense with these requisites. (Dawes v. North River Ins. Co., 7 Cowen, 462: McEvers v. Lawrence, Hoffman, Ch. 172.)
    III. It was error to deny the motion to dismiss the complaint renewed on the same, and on additional grounds, at the close of the defendants’ proof.
    1. There was no such agreement proved as would effectuate a verbal insurance of the premises, even if by the charter a verbal insurance were authorized. (Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. Rep. 153, 161, op. Judge Denio; p. 164, op. Judge Emott.) Thére was not, in this case, even before the evidence of the defendants was introduced, any such meeting of the minds of Davis and the defendants’ secretary. At the time' the bargain is said to have been made, Davis says the only subject discussed was the rate. There was nothing said as to the premises, or the risk, or the amount insured, or the time the risk should continue, or the premium.
    3. If there was any agreement, it was a conditional one, and never took effect. There was to be no agreement, unless on looking at the diagram the secretary should be satisfied. He never did go to look at it.
    IV. The verdict was grossly against the weight of evidence. The only witness to prove the alleged agreement (Davis) could not remember what was said at the only interview at which it is claimed the bargain was made. On the other hand, the secretary states what was said, and that he declined to take the risk, and this is not denied by Davis.

      Geo. 8. Stitt, for the plaintiff, respondent.
    I. The verdict of the jury is supported by the evidence as to the making of the contract.
    II. A verbal contract is valid. 1. The article 14, of the articles of incorporation is merely directory, and cannot be held to apply to a contract of this kind. (5 Wheat. 326. Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. Rep. 310. Angell & Ames on Corp. § 254.) 2. Yerbal contracts by incorporations are necessary in insurance business, to stand until the formal policy can be prepared and executed. (See powers of Insurance Companies, in 3 N. Y. 8tat. 202.) 3. Besides this, article 14 does not declare that all other forms of contracting shall be null. It is a provision to signify that the corporation will be bound by the signatures of the president and secretary, without the common • seal. Power to the president and secretary to issue policies is a good ground, and implies a power to make a contract by a policy.
    III. The contract made by the president and secretary is binding on the defendants. 1. The only mode in which a corporation aggregate can act or contract is through the intervention of its agents. (Angell & Ames on Corp. §§ 276, 112, 221.) A contract may be implied from the recognition of the acts of its agents, as if it had been an individual. (Id. § 237. 14 John. 118. 9 Paige, 496. 12 Barb. 496. 15 id. 323.) • 2. The president is an officer elected or appointed to preside ' over a corporation, &c. and to manage their concerns. ( Webster’s Dict. in verb. Angell & Ames on Corp. § 297. 3 Sandf. 176. 179. 14 Barb. 358.) 3. If the act of a corporation be done by one as its agent or attorney, no other proof of authority will be required. (Angell & Ames on Corp. § 282, and cases there cited.) 4. The defendants are estopped by the acts of their agent in this case from denying the contract. (Angell & Ames on Corp. § 238.)
   Robebtson, Oh. J.

Assuming that the defendants could make a contract of insurance without a writing, and that the president or secretary were duly authorized to make one, any agreement, to be binding on them as such, must at least have all the'elements of such a contract. In the case of The First Baptist Church v. The Brooklyn Fire Insurance Co. (28 N. Y. Rep. 161,) the definition given in the court below of what was essential to constitute a valid contract of insurance was approved of by two of the justices of that court (pp, 161, 164,) namely “ That the minds of the parties should meet as to the premises insured and the risk, as to the amount insured, as to the time the risk should continue, and as to the premium.” There are, therefore, at least five ingredients necessary in a contract of insurance, (1.) the subject matter, (2.) the risks insured against,(3.) the amount, (4.) duration of the risk, and (5.) the premium of insurance; a contract of insurance is incomplete which wants any of these.

The only witness whose testimony tended to prove any kind of an agreement, in this case, was the insurance broker (Davis.) He testified that in pursuance of an employment by Mr. Tyler he applied to the defendants “ for a policy of $2500 on stock in the Franklin Mills, at a premium of two per cent, in the name of John Tyler, * * in a few days he called again * * and the risk was accepted at two per cent.” He however explained what he meant by such acceptance by stating that the rate of insurance “was the only matter of discussion between the secretary and” himself “and he consented to take the risk,” The witness then “handed in a policy to be copied * * they were to make a like policy in order that the various policies might correspond.” That policy was not produced in evidence, nor was any evidence given as to its contents, except as to the description of the subject of insurance, on which alone being read to the witness he stated “ that a policy like that, in those particulars, he (the secretary) agreed to give.” On his cross-examination the witness stated that he could not say any thing more” (of what was said) “ than that the risk was taken for $2500, at two per cent,” and that he had stated all that had occurred at the second interview. This was all the evidence of any contract between the parties ; the testimony of the only- other witnesses, as to any negotiation, is adverse to the making of any agreement.

At the close of the evidence the defendants’ counsel asked to have the complaint dismissed, on the grounds that no cause of action in favor of the plaintiff had been proved, and that there was no evidence to warrant a verdict in favor of the plaintiff, which was denied, and exceptions were taken to such denial. The court “ charged the jury that if they should find, upon the evidence that this contract of insurance, as testified to by Mr. Davis, was made with ‘the defendants’ the plaintiff was entitled to a verdictto which charge the defendants’ counsel excepted. This fairly brings up the question whether such an agreement or transaction, as testified to by the broker, formed a valid contract of insurance.

Admitting that the subject, amount and premium of insurance were agreed upon, there is no evidence of what either the risks insured against, or the duration of insurance were to be. Eothing appears to have been said of either fire or other elements, and certainly nothing of the exceptions, conditions and provisions usually contained in all policies of insurance. Eor was any time specified. The previous contract had been for one or two days only. It does not appear by the testimony given by Davis of the conversation, that both parties meant to have a permanent contract of insurance for a definite time, entered into without any written policy. On the contrary it was, if made at all, apparently made temporarily, like the preceding engagement, until a policy could be made out. Mr. Davis states “ they (the defendants or their officers) were to make out a like policy” with one he handed them, yet with the contents of that one we are wholly unacquainted, as they were not proved, except as to the subject matter. The president of the defendants (Manners) testified that “ Mr. Davis threw a policy down on the secretary's desk and said ‘ There is a policy, if you take it.’ ” It would not necessarily follow that a temporary contract, orally made, to last until a policy could be made out, would extend to the time when the, fire actually occurred. Davis said he first applied early in July, and three or four days after the first interview, had the second. He never applied for a policy, although the fire did not take place until the 12th of July, after which the premium was for the first time offered. It would he extraordinary if parties could, after procuring an oral contract of insurance to last until a policy could he made out, lie by and wait until a fire, before paying the premium and claiming the benefit of it. - At all events, the promise, if made, was deficient in the elements of a contract in respect to the risks insured against, and its duration, and such appears by the sole testimony on which the case was submitted to the jury. It was therefore too vague and indefinite to he binding.

The judgment should be reversed with costs to the defendants on the appeal, to abide the event of the suit.

Jones, J. concurred.

McCunn, J.

(dissenting.) I cannot agree in this case in opinion with the majority of the court.

There were but two questions in this case ; first, is a verbal agreement, to insure for one year, valid' in law ? and, secondly, does the charter of the defendants forbid such verbal contracts of insurance?

The action is brought to recover $2500, on a parol agreement to insure the property of a Mr. Tyler. The facts are as follows : A Mr. Davis, an insurance broker, and agent for Mr. Tyler, called at the office of the defendants, and saw the president- of the company. He stated to the president that he wanted a policy on the Franklin mills. The president looked at the property, and said, in the absence of the secretary, he would make the risk binding until the secretary’s return; and he slipped a memorandum to that effect in the secretary’s desk. In a few days Mr. Davis called again; saw the secretary and president, and, after some conversation, the risk was accepted at two per cent. Mr. Davis handed a policy to the secretary, asking that a, like one be given. It gave a description of the property, showing that other companies had risks on the property, and Mr. Davis called their attention to the fact that the company had this same risk the year previous. A day or two after the premises were destroyed by fire Davis called and tendered the premium, $50, to the company. The secretary refused to receive the same.

The above facts were testified to by Mr. Davis, and corroborated, in a measure, by the president of the company. The secretary of the company, (Dusenbury,) denied the statement of Davis, and testified that he did not accept the risk. The learned justice, who tried the case, left the question to the jury as to whether there was a verbal contract of insurance, such as was testified to by Davis. If so, then, and in that case, the plaintiff was entitled to recover. Under this charge, the jury rendered a verdict for the full amount. I hold that such charge was quite correct in law, and the verdict rendered by the jury, accordingly, was a just and correct verdict.

It is now settled, beyond a doubt, that a verbal agreement for insurance is valid and obligatory on both the parties to the contract. In support of this proposition, cases in nearly all the states, and in England, are to be found. (2 Pars, on Cont. 5th ed. p. 350, and eases cited in the notes a, 5, c and d.)

A few prominent authorities only have to be examined, in order to convince us of this doctrine. Take, for instance, the latest case, The Baptist Church v. The Brooklyn Pire Insurance Company, (28 N. Y. Rep. 153.) That eminent jurist, Mr. Justice Denio, thus holds: That to constitute a valid contract of insurance, the minds of the parties should meet as to the premises insured, the risk, the amount insured, the time the risk should continue, and the amount of the premium, and that the contract might be verbal. Now, in this case, Davis testifies that the risk was shown the president and the secretary; the amount of insurance asked and agreed upon was $2500 ; the rate of premium fixed at two per cent; and a policy handed to the secretary, he agreeing to that form of policy. Moreover, the officers knew that this company had taken a risk, for one year, on the same premises and property, the year previous. Surely, under such circumstances, the minds of the parties must have met and agreed upon all these points. If they did, then I have no hesitation in saying that the contract was complete. If any thing more was required to constitute a valid verbal agreement of insurance, I am at a loss to conceive what it could be.

But, to make the case more clear, it is conceded by all, by the counsel on both sides, and by the witnesses, and even the court is unanimous on the point, that the agreement made by Davis with the president, to the effect that he, the president, would make the risk binding until the secretary should return, was a good and valid agreement to insure. The terms of that contract were not, it is true, by any means as clear and definite as the one made by the secretary a few days after. The president testifies that he told Davis the books were locked up, and he could not take the risk that day. Davis then showed him a respectable list of other companies he had with him, which companies covered the property with insurance, and he, the president, said, when he saw the list of risks, he would, and he did, make it binding until the secretary's return. ■ Compare this testimony on the first agreement with the testimony on the second, and it will be seen, at once, that the latter is much the stronger. Therefore the second agreement was, at least, as binding as the first. Moreover, it is a well established custom with insurance companies, that, if other respectable companies have insured the risk, a second company, insuring the same property, never look at the risk. All they ask, or seek, is the amount of their premium, and then they consult the other companies.

But, as I have stated, this company had this risk before, and knew well all about it.

The Supreme Court of the United States held, unanimously, in the case of The Mutual Marine Insurance Co. v. The Union Mutual Insurance Co. (19 How. 318,) “ that a parol agreement, to make and deliver a policy of insurance, need not be in writing,” and I do not hesitate to adopt that conclusion. The same clear rule was laid down by Mr. Justice Comstock, of the Court of Appeals, in the case of The Brooklyn Fire Insurance Company v. The First Baptist Church in Brooklyn, (19 N. T. Rep. 308.)

We have no law in this state requiring the contract of insurance to be in writing. .The agreement of insurance had its origin in mercantile law and usage, and has become so thoroughly incorporated with our municipal system, that a construction which denies the power and capacity of entering into such agreements in the nature of insurance, except in writing, rests upon no foundation.

The common law concedes to every person the general capacity of entering into contracts ; and this capacity relates alike to all subjects concerning which contracts may be made. It exists under no restraints in the mode of contracting, except those imposed by legislative authority. There is nothing in the nature of insurance which requires written evidence of the contract. I have merely commented on a few of the leading cases, and am unable to find any case holding a contrary doctrine. Indeed, these verbal agreements to insure, or to renew insurances, which is the same thing, are made, to a very great extent, every day, in this commercial community, and to hold them invalid would completely upset our present system of insurance, and would place at hazard an immense amount of property.

The remaining question to be disposed of is, whether the charter of this company forbids such verbal agreements.

As I read the charter of the defendants, it clearly does not forbid verbal contracts to insure. The second article declares, “ That the business of the company shall be to make insurance on dwelling houses, stores, and all kinds of buildings, * * * * and other property against loss or damage by fire, and the risk of inland navigation and - transportation.” How, this is the only section or article contained in their charter touching this question, and certainly there is nothing in that article precluding the company from entering into such parol agreements for insurance. The 14th article says : “ That all policies of insurance shall he subscribed by the president, or, in case of his absence or inability, by such of the board of directors, &c.” But this section does not say there shall be no verbal agreements for insurance. It only declares that policies made out under these verbal contracts shall be signed by the president, &c. How, we all know the agreement to insure is made days, and sometimes weeks, before the policy is made out.

This was held to be the rule in the case in 19 N. Y. Rep. cited above. .In that'case, the policy sued on contained two articles precisely similar to the ones cited as contained in the policies issued by the defendants ; and Mr. Justice Comstock puts the question entirely at rest. To the able and learned opinion in that case, I most respectfully defer.

The judgment below should be affirmed, with costs.

Judgment reversed.