1 Lans. 20 | N.Y. Sup. Ct. | 1869
Present — Marvin, Lamont and Barker, JJ.
By the court
The referee found the issuing of the policy, and the loss while the policy was in full force; that the house and barn destroyed were of the value of $4,000, and upward; that the damage to another barn was $100; that the plaintiff gave due notice to the defendant of the fire, with proof of the loss and damage occasioned thereby, and as a matter of law he decided that the plaintiff was entitled to recover $4,100, and interest $263.10.
The defendant filed several exceptions, some of which will be noticed hereafter.
At the close of the evidence the defendant’s counsel requested the referee to find and decide, as matter of law, certain propositions; and the referee refusing so to find and decide, the counsel excepted. Some of these will be hereafter noticed.
The jurisdiction of this court is more extended. “An appeal upon-the law may be taken to the General Term from a judgment entered upon the report of referees or the direction of a single judge of the same court, in all cases, and upon the fact when the trial'- is by the court or referees.” (Code, § 348; see also §§ 267, 268, relating to trial by the court.) Upon an appeal from the judgment, when the trial has been by the court, the questions of 1cm or fact, or both, may be reviewed by the General Term.
The review is in the same manner, embracing questions of law and fact, when the appeal to the General Term is from a judgment entered upon the trial by referees. (Code, §'272.) If a party desires a review upon the evidence appearing' on1 the trial, either of the questions of fact or of law, he may make a case or-exceptions in like manner as upon a trial by jury. - (§ 268.) When the trial is by jury, exceptions may be taken and stated in a ease or separately, with so much of the evidence; as may be material to the questions to be raised.
If the evidence necessary to show the pertinency of the exceptions only is stated, the case or exceptions is a simple substitute for the old bill of exceptions. But the ease may contain all the evidence and the exceptions, and upon a motion in: such- case, at Special Term, for a new trial, the exceptions and the evidence are before the court for review, and a new trial may be granted upon the exceptions or upon the ground that the verdict is against evidence, and an appeal
Upon an appeal to the General Term, from the judgment, questions of law, raised by the exceptions only, are examined, as we have seen by a reference to § 348. The facts are only reviewable by the General Term in appeals from judgments, “ when the trial is by the court or referees.”
Referees, are required to A state the facts found and the conclusions of law separately.” (Code," § 272.)
In Johnson v. Whitlock (3 Kern., 344), Judge Comstock considered this provision of the Code, and came to the conclusion that the referee was not required, in his report, to state the facts found by him, but that the findings of fact might be omitted until a case should be made. Although it would not, I think, be difiicult to show, from an examination of the Code, keeping in mind the history of the amendments made from time to time to §§ 267, 268 and 272, that the learned judge fell into error, and that, in truth, it was never intended to relieve the referee from the duty of stating in his report the facts found by him, it is quite unnecessary to make the examination, as the Supreme Court, soon after the decision in the Court of Appeals, enacted a rule that, “ upon a trial by referees they shall, in their decision and final report, state the facts found by them and their conclusions of law separately; a copy of which shall be served with notice of the judgment.” , (See Rule 32, of 1858.) The language of this rule is clear. The referee is required in his report to state the facts found by him. In the present case, the report of the referee states some facts found by him, but omits to notice certain other questions litigated on the trial, and the defendant complains of such omission. It would have been more satisfactory if the referee had found directly upon the question whether the risk had been increased by a change
In this case some requests were made by the counsel for defendant that the referee should find and decide, as matter
The counsel was unfortunate in the form of these requests. He probably intended to request the referee to find the fact or facts indicated, and then, upon such fact or facts, that the .referee should decide the law as requested. It is, undoubtedly, very proper, in many cases, that counsel should call the attention of the referee to the evidence, and request him to find a particular fact. If, however, the referee refuses, this is not a matter for exception. It is proper, sometimes, the facts being proven, to request the referee to decide in the manner indicated. In this way the attention of the referee is directed to the particular proposition of the counsel. It is, however, rarely necessary, so far as a review in this court is concerned; as by the Code and rule, the referee is to report the facts found by him, and the conclusions' of law separately. It will be well, before dismissing these questions of practice, to refer to Grant v. Morse (22 N. Y. R., 323), (and there are some other cases) where, in the opinion, some remarks are made as to the proper practice. As I have already stated, the Oourt of Appeals examines questions of law only. For the purposes of a review in that court, the question of law must be distinctly raised; and if it arises from the evidence, the fact which the evidence proves, or tends to prove, must be distinctly found. “ The party appealing must make his case, and have it settled, with such a statement of facts as will show necessarily that the law is in his favor. If he does not, every intendment, not absolutely unreasonable in itself, will be against him.” The learned judge, after remarking upon the practice in settling the case, says : “ It was their (appellant’s) privilege in procuring the referee to settle it, to require him to find upon all the issues, one way or the other. If he refused so to do, no donbt the Supreme Court would have granted a new trial for that very reason; or if not, then an exception to such a refusal might perhaps have been available in this court.” These remarks were not necessary to the decision of the case,
Proceeding to the case now before us, I am satisfied that it can he reviewed in this court upon this appeal, and disposed of in accordance with the rules of law and the rights of the parties.
By one of the conditions of the policy, it was to become void if the risk should be increased by any means whatever. The defendant claimed that the risk was increased, and gave evidence upon that question. Whether the risk was increased was a question of fact; and as it does not appear from the report that the referee has expressly found upon this question, the implication is that he could not include it as one of the facts found by him; that he negatived this claim; and the question for this court is, was the evidence such as to require the referee to find that the risk was increased ? The insurance was against loss or damage by fire on his (Manley’s) frame house and his three barns, situate on the farm known as the Howe farm, Little Valley, H. T. Hothing is said in the policy or conditions touching the occupancy of the buildings. It appeared from the evidence that at the time the insurance was effected the dwelling-house was occupied by Mrs. Howe and two children ,• by Rev. Mr. Scott, wife, and two children ; Alonzo Ames, wife, and child; Rev. Mr. Willoughby; Mrs. Fay and daughter, and some others. That such families occupied separate apartments of the house. This was in August, 1866. Mr. Vashing, a witness for defendant, testified that he lived in the house when it was burned, and had from April previous; and that Welch moved in when he did, and that they kept boarders; did not keep it as a general boarding house; only boarded men at work for Welch; they had some boarders the night of the fire; upon an average
It is declared by one of the conditions of the policy that if the assured shall assign the policy, either before or after a loss, without the consent of the company indorsed thereon, or shall sell or transfer the property insured, the policy shall be null and void. The defendant claims a breach of both of these conditions. The referee is silent upon these questions, except that he says: “ While the said fdliey was im, full force” the house, &c., were destroyed. The referee ought in fairness to have met these questions, and stated the facts, which he understood the evidence to prove.
The case shows that the interest of Manley in the property was that of a purchaser of the farm upon which the buildings were. He made the purchase of Chamberlain at $13,000 ; the contract bears date July 11th, 1866. Manley had made some payments and had possession. The fire was November 4th, 1867. The case contained a paper signed by Manley, and dated November 23d, directed to the defendant, in which Manley authorizes and requests that in the adjustment of his policy for loss, etc., the proceeds thereof be paid to Chamberlain. At the same time there was an indorsement on the back of the policy by which Manley transferred, assigned, and set over to Chamberlain all his right, title, and interest in the policy of insurance, and all benefit and advantage to be derived therefrom, on the two barns unburnt. The words “ on the two barns unburnt ” were not in the instrument when Manley executed it. The history is, the assignment was presented to the agent of the defendant for approval, and the agent refused to approve a general assignment, so far as the buildings burned were concerned, and the words restricting the assignment to the unburnt barns were then inserted, and the agent then reciting that Chamberlain had pu>
As to the alleged sale or transfer of the property insured, the evidence shows that Manley, by an instrument in writing, dated February 23d, 1867, sold and conveyed to Porter Welch one undivided half of his interest in the contract for the Howe farm. • I regard this as a sale of the one undivided half of the property insured. Ho consent of the company was obtained. What effect had this sale and transfer upon the rights of the plaintiff? Did the plaintiff lose all right to recover anything ? I think he did not. He can recover to the extent of his loss, assuming that he remained the owner of the undivided half of the property insured.
It is never necessary to insert in a policy of insurance the condition that it shall become void in case of a sale or transfer of the insured property without the consent óf the company. Such is the legal effect in the absence of any condition. The contract of insurance is personal and is for indemnity, and if the assured has transferred the subject of the insurance before loss, he has no longer any interest in the property. A party obtaining insurance must have an insurable interest or the policy will be void from the beginning, and as the contract is one of indemnity, he must have an interest in the thing destroyed at the time it was destroyed, otherwise he has sustained no loss. These are elementary principles in the law of insurance.
The counsel for the defendant cited in his brief Tillou v. The Kingston Mut. Ins. Co. (1 Seld., 405). The policy was issued to the three plaintiffs, who were partners; they assigned it to one Ketchum as security, with the consent' of the company, and, after this, one of the partners sold and transferred his interest in-the insured property to his copartners."
In the Court of Appeals, Foot, J., said: “ The case of Murdock v. The Chenango Co. Mut. In. Co. (2 Coms., 210), is decisive against "the claim of the respondents to recover in this action for-their own benefit.” _ The - opinion then proceeds to "show that a recovery was proper- for the benefit of the assignee, Ketchum, to the amount of his Interest. • " -
The 'case referred to in- Comstock was thisTwo'ténañtsln common were insured,-’and one of them,' before the loss, conveyed his interest- in the premises to the other,-and it was held that they -could not maintain a- joint action upon the policy.-: The "reason for this decision- will readily occur to" all-well informed’ -as :tó- the 'rules touching the parties to" actions at law. As oiie of’the plaintiffs had divested himself of any interest, he had ho cause of complaint; as to Mm the-policy was void. - As- the • contract was with the two jointly,- and as it was a rule that all joint:contractors, if living, must-be joined "in the action, the action-could not" be maintained in case one of the joint contractors, obligees or promisees had released the cause of action. The action was gone as to all
Before taking leave of Murdoch’s case, I think I may be pardoned for suggesting that probably no such decision would now be made, after considering the really valuable reforms made by the Code touching parties to actions, and the rendition of judgments. The case was decided in the Court of Appeals, in 1849, under the old system, and without any reference to the Code. Now, by the Code, it is no objection to a recovery that too many persons have been made plaintiffs. If one of the plaintiffs proves a good cause of action, he is entitled to judgment; and as a sale by one of two or more persons jointly insured renders the policy Void as to him, because he has ceased to have any interest in the property ; it should be held that the contract remained good as a contract solely with those who remained owners at the time of the loss. It was not indeed decided in Murdoch’s case
It is not necessary, in the view I have taken, to consider the question of waiver by the company of any objection to the sale by Manley of half of his interest in the contract to Welch. The counsel made an oral point on the argument that the preliminary proofs do not show who were the respective owners at the time of the loss, as required by the policy. It appears from the case that it was admitted on the trial that the proofs required by the policy were made and delivered to the agent; besides, I think they were sufficient.
The judgment should be affirmed.