4 N.Y. 85 | NY | 1856
It appears from the opinion of the supreme court, with which we have been furnished, that no doubt was entertained by the judges of that court but that the contract of insurance upon which this action was brought was invalid, nor but that it ought to have been so held, if the defendants had not committed a fault in pleading, by which, as it is decided, they had lost the advantage of that defence. It appears, however, that all the evidence to show the position which Stevens occupied when he executed the policy of insurance, as the agent of both parties, was received without objection; and that as to that question, there was no allusion to the pleadings in the course of the trial. This ground was taken by the defendants’ counsel on the motion for a nonsuit and again after the evidence had closed, and yet no answer based upon a supposed defect in the defendants’ pleadings appears to have been suggested by the counsel or by the court. The answer does deny the fact of the contract, and that Stevens was the agent of the defendants, or was authorized to sign the policy of insurance. I suppose' that, in the mind of the pleader, this denial was predicated of his supposed incompetency to act as the agent of the defendants in a contract when he was at the same time acting as the secretary and agent of the plaintiffs. If the principle admitted by the supreme court is correct, it sustains the general denial in the answer; though it is obvious that it would have been more frank to have averred the special facts out of which his incompetency arose. There is, however, no reason to believe that the plaintiffs were misled or surprised by the defence set up under the general pleading.
I think the supreme court was right in the opinion that the contract of insurance was invalid, for the.reason which has been mentioned. As the courts of the state are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case. In a suit which could not formerly have been defended at law, but as to which the defendant would have been relieved in equity, he can now have the like relief in the first action. (Code, §§ 69, 150; Dobson v. Pearce, 2 Kern., 157.) And such relief consists in denying to the plaintiffs a right to recover. It was always theoretically unreasonable (though practically less objectionable than has been supposed), that in one branch of the judiciary the court should hold that the party prosecuted had no defence, while in another branch the judges should decide that the plaintiff had no right to recover. The authors of the Code, aiming at greater theo
The letter of Mr. Stevens to the defendants’ secretary did not disclose his connection with the plaintiffs’ company. What is said, as to “ risks on property where our company have risks,” would not necessarily or probably be understood to refer to a company of which the writer was an officer. The expression would naturally be regarded as having reference to an insurance company located in the village in which the writer resided. But if this were
The judgment of the supreme court must be reversed and a new trial ordered.
All the judges except Mitchell, J., who delivered an opinion in favor of affirmance, and Comstock, J., who having been counsel in the cause took no part in the decision, concurred in reversing the judgment on the ground stated in the foregoing opinion.
Judgment reversed