1 Cai. Cas. 276 | N.Y. Sup. Ct. | 1803
Several questions have been made, which may be considered in the following order:
1. Whether the insurance, which was general, can apply exclusively to the interest of the plaintiffs, that being an undivided third part of the cargo ?
2. Whether the defendants are at all liable for the expenses which accrued subsequent to the acquittal, and in prosecuting the appeal for damages?
3. Whether the defendants were not entitled to inspect the letter called for by them, and to elect whether it should be read in evidence ?
4. Whether the expenses in prosecuting the appeal at Cuba were reasonable, and ought to be allowed?
As to the first, I consider it well established in practice, that the assured is not required to state the particular interest, or proportion of interest, which he intends to have insured. It is sufficient if he have an insurable interest to the amount in question. Whether it be a distinct, or an undivided share, cannot be material. It may often be difficult to ascertain his interest with certainty. The owners were at least equitably entitled to their shares in severalty;
2. As to the second objection, I see no reason why the defendants should not be liable for the expenses attending the prosecution of the appeal in Cuba, which was conducted with good faith and for their benefit. I am informed that it was decided by this court in April, 1795, in the case of Smith v. Scott, that an assurer is liable for similar expenses, beyond the amount of his ^subscription, [*285] and I believe that the underwriters have in practice, uniformly acknowledged their liability.
3. As to the third point, I see no reason to change the' opinion I entertained at the trial. A party who gives notice to produce a paper in evidence, must be supposed to know its contents. If he does not, he ought not to be permitted to speculate through the forms of law, and obtain from his adversary the inspection of any paper or document he may choose to demand. Such a privilege would be liable to abuse, and, I think, neither correct in principle, nor consistent with the form of proceeding in such cases. The notice to produce a paper, requires it to be produced in evidence, and when once called for and produced, it is of course in evidence, and I think it cannot be called for on any other terms. I understand this to have been the practice of our own courts, and no question has arisen upon it to my knowledge, until a late decision of Lord Kenyon at nisi prim, which suggested the idea now maintained by the defendants’ counsel. Sayer v. Kitchen, 1 Esp. Cases, p. 210. It may be .questioned whether the point decided in that case, is similar to the present. Without examin[*286] ing *this, it was an opinion at nisi prius, and of itself no authority; and in addition to what has been said, I think the alternative that the party giving the notice, if the paper be not produced, may go into evidence of its contents, shows not only that he must be supposed to be apprised of them, but that he cannot have it in his power to compel a previous inspection. If the paper be refused or withheld, he can do no more than give inferior evidence respecting it; Neither the court nor the party can enforce its production for the purpose of inspection, or any other purpose.
4. Whether the expenditures in prosecuting the appeal in the island of Cuba, were reasonable and proper, under
I am, therefore, of opinion, on all the points, that the plaintiffs are entitled to recover according to the verdict as it stands.
I concur in the opinion given, except as to the third point. I am inclined to think the defendants were entitled to an inspection of the letter they had given notice to produce, without stipulating that they would afterwards read it in evidence. The practice of giving notice to produce papers, as in the present case, has been introduced to save the expense of going into chancery for a discovery, and I can see no good reason why the party ought not to be entitled to all the advantages he would have, had he resorted to his bill in equity. In that case, after a discovery, he might exercise his discretion whether to use it as evidence or not. I do not think this right of inspection would be liable to the abuses suggested by the plaintiffs’ counsel, that it might lead to an impertinent inspection of papers having no relevancy to the controversy. The party calling for the paper, must appear in the first instance, to have an interest in, and right to, it; he must give notice to produce it. This notice must contain % description of the paper with convenient [*287] certainty, and it must be proved to be in the possession of the opposite party; after which it would be competent for the party having the paper, to object against the introduction, or the proof of its contents, as being illegal or irrelevant, in the same manner as if the party calling for the paper had been in possession of it, or as might be done with respect to every other piece of testimony. To require a stipulation, at all events, that the paper should be read in
concurred, and on the third point said, he did not consider there was any essential difference between the opinion of Thompson, J. and that delivered by Mr Justice Radcliff.
Justices, gave no opinion, the former not having heard the argument, and the latter hay lug been of counsel in the cause.
New trial denied.
See Lawrence v. Sebor, 2 Caines’ Rep. 208, n.
Watson v. Marine Insurance Company, 7 Johns. Rep. 62, S. P. And in the expenses of labor, &c., may be included those of wharfage and selling the ship. McBride v. Mmine Insurance Compmy, 1 Johns. Rep. 431. But under this clause by which these expenses are recoverable, the assured, or their agents, are not hound to appeal. Gardere v. Columbian Insurance Company, 7 Johns. Rep. 514.
Decided according to this. Kenny v. Van Horne & Clarkson, 1 Johns Rep. 395.