Marco v. . Liverpool London Insurance Co., 35 N.Y. 664

London Insurance Co. [Sept.^ y. Liverpool & Marco Statement of case. and Samuel Marco, Appellants,

Nathan The Marco and Fire and London Life Insurance Com pany, Respondents. this court is bound the facts as Upon found the referee. review, judgment

Where the Court the have reversed Supreme report- that done it is of stated referee, upon questions fact, pre- that-the reversed for errors in will sumption law. be. comes from the third dis- up appeal Supreme Court, This trict, order of General upon Term, reversing judgment referee, in favor of the of a plaintiffs, upon a new trial. ordering

The action was of insurance for policy $1,000, the 13th issued on of him 1857, Elle, G. August, insuring on a for one year ready-made clothing materials, ain brick No. River building, street, Troy. 156J

The that on the 8th complaint alleges Elle, day Sep- with the 1857, tember, the company, said to -the that assigned plaintiffs; 3d 1857, consideration five day October, transferred the said dollars, frame policy,' writing, known No. north side of building, a fire occurred the last mentioned build- Troy; and materials ing, destroyed ready-made clothing, owned making store, clothing, value of loss was served on the com- $1,000; proof duly pany. defense the consent to the transfer alleges that- fraudulently procured-by falsely representing under the same insured set Elle, fire, having removed the

previously greater part goods belonging them from the building. At the trial the evidence respect was very conflicting, stock of representation clothing materials insured by policy; but, belonging y. Liverpool London Insurance of. case.

Statement for the the evidence defense, branch other doubt reasonable leaving clear and decisive, plaintiffs had not plaintiffs the fire accidental, made fire, any removed of their before any goods fraudulent claim for not destroyed. goods

The referee found: to G-.Elle, issued alleged 1. That the policy company of ten dollars. for consideration the complaint, a valuable considera- for afterward, That the 2. company, in the to a of the a-building consented tion, policy of West Troy. village at the same date, afterward, That also,

3. company, in the interest of Elle consented, writing, to the assigned might not they That the did represent pur-

4. nor that the insured of Elle, the insured chased property in the store. was then plaintiffs’ to one did state a clerk of 5. That Hays, the consent, at time of the application plaintiffs, to have the of insurance that was companies practice insured. follow the goods originally obtained. consent was fraudulently That the 6. did not property origi- That the

7. of it. insured, nally from Elle unexpired That the

8. plaintiffs purchased at the and so informed the defendants, term said policy, transfer. of the consent time assignment Elle consent, after assigned plaintiffs, 9. That, his interest policy. writing, after the consent assignment, That, stock of store plaintiffs, containing inspected kind as that after insured, same and, originally instrument consented, such inspection, writing, its transfer, so as to cover the said annexed and the to the defend- stock plaintiffs paid five dollars increased risk, ants consent being 8th of September, Tiffany—Yol. YIII. Livebpool London Insueance [Sept., Masco

Statement of case. 11. That the usual for an insurance of the character price and amount covered and that the $20, defendants received for the risk sum, aggregate, under that policy.

12. That the store was plaintiffs’ destroyed fire, totally December their entire 20th, 1857, burned, whereby sustained loss of $1,000. upward

13. That the evidence does not show how the fire origina- ted; but there that it was occasioned the proof plaintiffs.

14. That due of loss were proofs given March 1858. by plaintiffs, 20th, 15. from That, these the facts, are entitled to plaintiffs recover from the defendants $1,126.15. the had

Upon for report, plaintiffs the amount judgment with costs. » reported due, The defendants on the excepted report, following viz.: grounds, - 1. To the that the consent the finding defendants to the was obtained. assignment duly ' 2. To the that the did not 'finding plaintiffs represent the defendants had the insured they purchased property the and to the that the did not finding plaintiffs that the insured then represent property plaintiffs’ store.

3. To the that the consent of the finding defendants was obtained. fraudulently 4. To the defendants consented to finding so to cover the stock of the plaintiffs.

5. To the that the referee could from the evi- finding not, find how the fire dence, originated. Also, that the referee has not found ground fire

that the originated carelessness, through negligence, conduct of the improper Also, are entitled finding and to and to $1,126.15, therefor, recover judgment every y. Insurance & London 1866'.] J. Leonard, law of and conclusions findings branch referee. where Term, the General appealed ordering said judgment made, reversing

order from said order to now trial. The plaintiffs appeal new that an absolute and have stipulated this court, the order from be affirmed. if them, appealed rendered against U. for John Reynolds, appellants. A.

William Beach, respondents. most material The first and objection the referee the defendants is, urged of evidence finding weight- against at the obtained the did not time they represent, the transfer company and that it then in insured, store. plaintiffs’ oral There is evidence sides but both question; relied on, as conclusive of the defend- that favor principally is the consent to ants, transfer, states, which the interest of Elle its be trans- face, policy may “ H. Marco Son (the ferred plaintiffs), purchasers of theproperty.” On the evidence of Samuel one Marco, point, “ is as made the follows who : I negotiation, said, I transferred us; wanted the about

we nothing I we and bought wanted said, policy, buying goods; it to street; transfer Mr. he should came Congress Hays at the and the down and looked place goods, brought I have to him and told me should five dollars give he said was wooden other more; building, he attached.” brick; paper (the consent) brought On the Jared G. their Bacon, agent, came to issued the testified that Samuel Marco who “ his asked me if I would his office own (using language) to him I asked him he wanted ; why he had he Elle’s bought goods done; replied Livebpool Masco v. & London Insubance [Sept., Court,per wanted the benefit I asked him policy; where the he had he said taken were; them his store Con- goods I said to Mr. street; Marco’s gress Hays, presence, to the store he down and examine the go I might premises; then to Marco and unless replied said, these yon bought them in I put store will not transfer goods your the policy, that if but he had I them would consent to the trans- bought fer he; that he had replied his whole stock of bought goods.” a clerk of the Hays, testified as Hugh fol- agent, Bacon, “ lows : I understood when he was Marco, negotiating me for the consent to remove the that his firm had insurance, the insured were property; already store street.”

On his further testified cross-examination, that Marco Hays broken difficult for him under- very spoke English, very and that there stand, that he misunderstood possibility him.

There are three consents indorsed upon policy—two date 8th the 3d bearing another on September, October were all read in of them evidence. They

The three consents read as viz.: follows, “ the interest G. Elle in this Consent that policy may Marco & transferred to 'N. Son, pwohasers J. G. BACON, Agent. property. “ 1857.” September Troy, “ to the two frame build- 2. This transferred story of Whitehall Mr. the east side owned McGuire, ing in the street, the south of Htica second street, being building and five consideration West N. dollars of Troy, Y., village BACON, J. G. Agent, paid. “ Per Hats. 1857.” 8, September “ to the frame build- is transferred 3. This hereby north street, as the side known No. 109, Congress ing the increased dollars consideration and five Troy, paid BACON, J. G. Agent, risk. “ H.” Per October 3, Troy, & London Insurance Opinion the the of Bacon, the consent was handwriting

The first his The last two were written by him. and signed by agent, his direction. clerk, Hays, the in the evidence explaining meaning

There is nothing in Whitehall building transfer The fire occurred, the dated 8th September. at 109 street; was the destroyed, property at the time there that the were business appears for. was the consent applied assign the second from the evidence, So far as anything appears was 8th, wholly inopera- consent, September so The instrument that tive. operated to cover the stock destroyed fire, building last of the three consents. October that of 3d, to the mean- is not as It observed question will be or of them. It whether there is, the consents, any ing or either of plaintiffs, them, misrepresentation by any the stock of and whether to their having purchased or their were influenced agent, Bacon, consent to transfer. such representations terms these explaining consents, For purpose evidence was but wholly inoperative; paroi was not of misrepresentation writing conclusive, question other either evidence, open explanation paroi. The fact received consent in wilting .were agent, stating purchasers corroborative insured, strongly position that there was such under- claimed by it is but not conclusive agent; standing alone of the con- Marco, who, Samuel so state Bacon, did, fact, versation represent. that he broken The fact difficult very spoke English, as testified clerk, con- understand, by Hays, explains the evidence of the witnesses tradiction my satisfaction. not to -either Samuel Marco or assumed, It be Mr. their testified but is to false; Bacon, willfully testimony if Bacon wrote the harmonized, first possible. consent, Liverpool & London Insurance Co. [Sept., Marco Court,per

Opinionof the he the statement he wrote about the probably purchase understood it. It is with his as to conformity testimony, what Marco said about the of the stock of Elle. The evidence of free Samuel Marco from internal appears contradiction, inconsistency prevarication. Standing alone, it is clear from the cause to doubt its entire slightest honesty and truth. The evidence of and that afforded Bacon, the first consent as is to the doubt himself, prepared by open that he acted a of what upon misunderstanding a Samuel who was it Marco, and, Prussian-Pole, appears from the evidence of broken Hays, spoke very English. Marco misunderstood Whether Bacon, Bacon misunder- stood Marco, on the practical importance question to the evidence of misrepresentation. According Hays, was not in the office agent, Bacon, conversa- during tion with Marco and when for the consent applied transfer the but that Bacon afterward policy; came in, him and he told about when' (Hays) Bacon told him it, and see the which he premises, did, go reported Bacon, and then the consent executed, he took the policy down This concurs also with the evidence Samuel who states that his Marco, conversation was with These facts indicate that Bacon Hays. wrote the consent, either as to he his what clerk, under- stood from the conversation or from Marco, having, his misunderstood broken It himself, been speech. having and afterward sent by Bacon, by Hays plaint- takes from the written consent iffs, that corroborative force under other it which, would It circumstances, is to possess. be taken now as of what Bacon evidence, understood only he when wrote it. materiality is also to be taken into want considera- willful or fraudulent

tion, determining question misrepresentation.

It from the evidence of Hays, customary appears, to a third to issue new party unexpired term, for the same consideration that the would company if transfer. He we would have said, also, required, Liverpool & London Insurance Marco Co. Court, per

Opinion of J. Leonard, for the and have credit unexpired a new issued policy, given issued a the old or have new term on policy, consent to transfer. given other party, it there this evidence, very From appears, plainly, The for Marco to make no any misrepresentation. object for it, had a asked could have new policy, plaintiffs pur- credit portion unexpired receiving one had then been only which running chased it the date issued. month from lead me to the conclusion considerations These on fraudu- a decision referee came to correct question and that there was cause here for the lent no representations, General Term to reverse the judgment. a court or see the

The who witnesses, jury, their char- and have the best opportunity determining not to be and manner disturbed acter testifying, ought a clear and fact, very except irrefragable question a of error in conclusion. Such case is not here evidence presented. also insist that the is not

The defendants agent proven to consent assignment any authority it to apply any property, authority except if to Elle described but that, policy; belonging be assumed or consent authority conceded, applies a not to or different to new new only locality, subject of insurance. indefinite its I

The is somewhat terms; but, a fair includes the within the think, reading prem- within which the and not building ready- ises, premises and materials of were contained. made clothing a stock of The covered ready-made clothing The had similar and materials. materials. clothing had no interest The con- reasonable building. They “ transfer to-the clusion frame known is, building, north side of connected street,” No. nature transfers alleges building. complaint & Loísmos- ¡o. [Sept. Insueance

Opinion of the of the and no transfer the issue is made defendants, policy by the answer in this by respect allegation. of

The fact the to be deemed transfer is admitted,-therefore, for the want of It denial. that to be any is, also, observed, no there is to the want of report, exception any pointing the proof agent. authority by There was no motion dismiss the the complaint; the of the the com- questions validity by respecting the execution never to pany, policy, appear have until time. been raised the present

The referee finds that the the consent of defendants, by that should the cover 8th, 1857, September stipulated the The referee mistaken the has plaintiffs’ property. to the case. It is that of October applicable 3d, that makes the referred to. This consent stipulation street, Ho. where the fire applies occurred; while that of 8th mentions certain September premises Whitehall there has not and' where been any fire, where the had no property.

The three are described who signed by persons, therein as have affixed their directors, seals, personal their to the instrument. The defendants signatures, object does this contract the prove binding upon defendants. to this

The answer is, all-significant objection have executed been- complaint alleges the answer admits it in defendants, terms. express answer caused the Although alleges consumed fire which their removed property, fraudulently of their some stock before is taken fire, exception this has nor report defense; negativing point defendants, in made it. It been must be respect as considered been abandoned as a having defense, ground of the evidence for the at large part although relates to trial, this offered for the subject, purpose fastening charge upon, fails in this evidence it also entirely does, respect, my far it so relates minor of false and opinion, charge London Insurance Court,per J.Ch. Davies, fraudulent representations

covered of insurance. original policy

There was no court below reversing opinion as no other but referee; judgment upon report have learned and been discussed ingenious questions I counsel for be assumed, think, defendants, may were no than there other causes reversal those which been here discussed.

The facts found the referee warrant emphatically in favor of the and in the evidence, my judgment plaintiffs; and sustains his opinion, satisfactorily clearly findings.

The of the General Term order should be and reversed, on the referee’s be with affirmed, costs. Ch. J. This is an action a fire issued upon policy

Davies, the defendants to one G. for one Elle, him by year insuring in the sum of on a stock $1,000, and ready-made clothing in a brick materials, Do. Diver building, street, 156£ It was claimed city Troy. policy had been to them with assigned consent of the and had defendants, been, the consent of the defendants, transferred the frame on the east side of building White- hall West street, Troy. cause was referred ato referee, who found facts on the appearing trial, gave judg- ment for the The General Term of the Supreme Court reversed the but not judgment, as upon facts, their and ordered a order, new trial. appears The facts found the referee are as follows: 1. That the for the consideration defendants, of the sum issued one G. $10, Elle duly insurance in described plaintiffs’ complaint, which the upon was action brought.

2. for a That, afterward, valuable consider- consented ation, to transfer said policy, by instrument in frame on the east writing, two-story building side Whitehall West Troy, consideration of five dollars paid.

Tiffany—Yol. VIH. London Insurance Co. [Sept., Marco Court,per Oh.'J. Davies,. That Gr. Elle said plaintiffs afterward,

the 8th of defend- September, 1857, duly obtained, ants, conspnt the interest of the said Elle said Gr. be transferred to said might" assigned which and is indorsed said policy, wilting, follows:

“ trans- Consent the interest may 3sT; . & Marco ferred to Son, purchasers property. “ "8th, J. Gr. BACON", Trot, Sept. Agent.” at the time said consent Marco did 4. That Samuel not, defend- agent agents was obtained, represent insured ants did at not, time, that said that said agents agent represent then in store. plaintiffs’ insured property to said did state the defendants, Hays, the clerk of 5. That such consent at the time Marco, Samuel application of insurance it was the practice substance, made, follow the originally policy goods companies insured. obtained. was not fraudulently That consent

6. said did not property origin- That the plaintiffs 7. thereof. or any insured said by policy, ally term of said unexpired That the 8. plaintiffs defendants at and informed said so from said policy and transfer to the consent time assignment set and that said forth, above defendants, obtained. not fraudulently consent and on the obtained, above consent was after the That 9. an instrument the said 1857, Elle, by of September, 8th in said and interest sold his policy duly assigned writing, a valuable to the for thereof, consideration, term un expired" obtained from the after such consent That, 10. made Elle plaintiffs, and assignment the store of of con- plaintiffs, made inspection personal kind and character as same goods stock taining Ss Marco v. London Insurance Ch. J. Batees, which said at issued, No. policy originally and after such an Troy, inspection, by instrument annexed to said writing consented to the transfer of said to cover the said stock to, said said plaintiffs, plaintiffs paid said defendants five dollars the increased for such consent risk, one above set forth. being September. 8th, 1857, (By a reference to the it is testimony, referee apparent mistake referred in his September when in fact he intended to and 8th, 1857, did refer to the con- sent of October which 3d, 1857, was also indorsed on the with the two consents of 8th, September 1857,' in these words:

“ This transferred to the hereby frame building as No. 109 known on the north side Congress street, Troy, and five dollars consideration for the increased paid risk. Oet. Sd, 1857. S. G. BACON, Agent.

“Trot,

Per H.”) That the usual for price original insurance, character and amount covered said $20, the defendants received, aggregate, risk under this policy, $20. That said store of the the 20th of ^was,

December, totally destroyed by fire; their entire by having ready-made clothing materials the same making destroyed fire, sus- tained loss of one upward thousand dollars.

13. That there was no proof said fire was occa- sioned by That due of loss on proofs the said were given by the 20th plaintiffs,' of March, that, the above facts, referee a found, as

conclusion of law, the said were entitled recover the amount of said and the interest thereon.

As this already observed, court, upon review, bound, by the truth of the repeated adjudications, as found facts, and if there referee; no error law these upon facts, [Sept., Insurance & London Ch. J. Davies, were found authorized assume, hy those which we are is the to sustain his then it the referee, duty judgment, affirm it. court ithis intimation of the reasons which

We are without any a new and as trial; Court influenced the granting Supreme on the has said that reversed the court judgment to assume are fact, we referee, questions report in other a of law, reversed on or, it was question as found Court facts held, taking Supreme words, of law had erred, he his conclusion referee, In this, to recover. entitled were thereon, court error. the learned were think, clearly we made referee, the facts found arrangement From in all was, the defendants respects, with the plaintiffs from the defend- the plaintiffs, out, by taking equivalent store Ho. their stock a new goods, ants, demanded was The premium street, Troy. 109 Congress fault ofl*the part without any and, paid, than that covered amount greater sustained, loss was in due made time, Proof loss was the policy. and no fact is the' conditions according doubt plaintiffs’ right upon which casts found recovery. undeni- the referee was, therefore, conclusion

The legal and the order new trial should correct; granting ably of the referee reversed, costs. affirmed, accordingly.

Judgment

Case Details

Case Name: Marco v. . Liverpool London Insurance Co.

Court Name: New York Court of Appeals

Date Published: Sep 5, 1866

Citation: 35 N.Y. 664

Court Abbreviation: N.Y.