Volume 96 — New York Supreme Court Reports

Appeal by the jilaintiff in each of the above-entitled actions from a judgment of the Supreme Court in favor of the defendant, •entered in the office of the clerk of the county of Kings on the loth day of April, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiff, The People of the State of' New .York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 5th day of March, 1895, upon the decision of the court rendered after a trial at the Richmond Special Term sustaining the demurrer of the defendant to the complaint, with notice of an intention to bring up for review upon such appeal an order made at the Kings County Special Term,…

Appeal by the defendants, Elnatlian T. Field and Chester Huntington, as receiver of The Greenwood Late Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23 d day of February, 1895, upon the decision of the court rendered after a trial at the Orange Special Term.

Appeal by the defendants, The Village of College Point and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of April, 1895, retaxing the costs in the above-entitled action and disallowing items of costs taxed, and which reduces the amount of the judgment entered in said action.

<p>Fire insurance policy — construction of indorsements thereon — when cm agreemen\ that the policy shall he void if other insurance is obtained, does not apply — who is, the insured in a policy — when an insurance company is estopped from objecting U proofs of loss.</p> <p>Courts are bound to construe indorsements upon policies oí fire insurance in such manner as to give them full vigor and effect for the purposes for which they were made and intended.</p> <p>Upon the trial of an action brought to recover damages occasioned by a loss by fire under a policy of fire insurance, it appeared that the policy was issued by the Agricultural Insurance Company to one Lockwood who was then the owner of the property insured. Lockwood subsequently conveyed the property ta one Smith, and took from Smith a mortgage to secure the payment of a portion of the purchase price, and thereupon the insurance company, with full notice of that fact, made an indorsement on the policy as follows: “Warren E. Smith is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided, and loss, if any, first payable to Hanford Lockwood, mortgagee, as interest may appear. ” This policy contained the following clause: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered, in whole or in part, by this policy.”</p> <p>Afterwards, Smith contracted to sell the insured property to George E. Nichols, who entered into possession of the same under his contract of sale, and commenced making repairs to the same, but bad not received a conveyance oí the property. On December 22, 1892, Nichols applied to the Liverpool, London and Globe Insurance Company for insurance on the buildings, and obtained a policy which was in full force when the insured property was destroyed by fire. Five days after the issuance of the policy of insurance to Nichols, the Agricultural Insurance Company, at the request of Lookwood, made another indorsement upon the policy as follows: “ George' E. Nichols is now recognized as owner of this policy and the property mentioned as insured hereinunder, subject, nevertheless, to all the rules and conditions of this policy, none of which are hereby waived or avoided.” This indorsement was obtained and made without the knowledge of Nichols at the time it was made.</p> <p>On January eleventh the insured property was wholly destroyed by fire, and in due season the proofs of loss were served by Nichols upon the Agricultural Insurance Company. These were kept and retained by the company without objection that they were not served by the proper party or were not proper in form or substance. Nichols was also the assignee of all the rights of Lockwood under sucli policy.</p> <p>Held, that Nichols occupied no such relation to the policy held by Lockwood as “ the insured" at the time he obtained the policy of insurance from the Liverpool, London and Globe Insurance Company; that he was no party to the contract, though he might be incidentally benefited by it if a loss had occurred and had been paid by the company to Lockwood under the indorsement then existing on the policy;</p> <p>That even though the indorsement made by the Agricultural Insurance Company five days after the issuance of the policy to Nichols by the Liverpool, London and Globe Insurance Company recognizing Nichols as the owner of the policy put him'at that time in the position of “ the insured," that could not operate to-make him “ the insured" as of the date when he took the insurance from the Liverpool, London and Globe Insurance Company; that the law gives no such retroactive effect to such an indorsement for the purpose of destroying a policy of fire insurance, although it will give such effect when necessary for the purpose of preserving from, that or similar consequences;</p> <p>That what the Agricultural Insurance Company did in recognizing Nichols as owner of the policy as well for his benefit as the benefit of Lockwood, the mortgagee and holder, must be construed as making Nichols “ the insured" as of that date, if at all, and not as bringing- him into that relation for the purpose of annulling the policy under the clause above mentioned;</p> <p>That Nichols was not the insured under the policy of insurance issued to Lockwood when he took the insurance in the Liverpool, London and Globe Insurance Company; that his act in taking that insurance did not vitiate the policy held by Lockwood; that the consent of the Agricultural Insurance Company to regard him as the owner of the policy by the indorsement subsequently made thereon had no other effect than to bring him into such relations as those reo gnized and accepted by the company afterwards when it received from him and retained the proofs of loss required by the policy to be made by the party-entitled to the insurance;</p> <p>That when Nichols took his policy of insurance in the Liverpool, London and Globe Insurance Company he had an insurable interest in the property by reason of his contract to purchase, which policy attached to such insurable interest and was not within the prohibition clause contained in the policy issued to Lockwood;</p> <p>That there was no such breach of the conditions of the policy by Lockwood or Smith or Nichols as justified the Agricultural Insurance Company in refusing to pay the loss;</p> <p>That the Agricultural Insurance Company was estopped from asserting that the proofs of loss were not served or made by the proper person, and that it was liable for the full amount of the loss under the policy without apportioning the loss with the policy issued to Nichols.</p>

Appeal by tbe plaintiff, Roxanna Kelley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Putnam on the 27th day of April, 1894, upon the decision of the court, rendered after a trial at the Putnam Special Equity Term, dismissing the plaintiff’s complaint upon the merits.

<p>Appeal by tbe defendants, Patrick J. Gleason and another, from a judgment of the Supreme Court in favor of the plaintiff in the first above-entitled action, entered -in the office of the clerk of the county of Queens-on the 22d day of March, 1895, upon the decision of the court rendered after a trial at the Queens County Equity Term, with notice of an intention to bring up for review upon such appeal an order made at the Queens County Special Term on the 18th day of March, 1895, and entered in said clerk’s office, granting the plaintiff an extra allowance.</p> <p>Prior to his death in 1889, Louis Roediger owned certain premises, which may be conveniently designated as the city hall property in Long Island City. Among his heirs at law were August Roe-diger, Marie A. Jahn and "Wilhelmina Messnik, each of whom inherited a one-seventh interest in the premises mentioned. Wilhelmina Messnik instituted a suit for the partition of the property in the County Court of Queens county, and in that suit Patrick J. Gleason was duly appointed receiver of the premises, pendente lite, with power to collect the rent. He qualified as such receiver, took possession, collected the rents, and lias never accounted as receiver nor been discharged, so far as appears. The partition action seems never to have been discontinued, although there is no evidence that anything ever was clone therein after the appointment and qualification of the receiver.</p> <p>Subsequently, on the 19th day of July, 1889, at the request of Thomas F. Donnelly, Esq., who was their attorney in the partition suit, Mr. Roediger and Mrs. Jahn executed deeds, whereby they conveyed to Rodey S. .Brassell their interest in the city hall property at Long Island City. The consideration which they received for this conveyance was $100 each, which was much less than the actual value of the interest of each at the time. Although Mr. Donnelly told Mr. Roediger and Mrs. Jahn that the papers which they signed were deeds of the property, neither understood that they were to receive no more for their interest. Mr. Brassell, the grantee named in the conveyance, was really the agent of Mr. Gleason to effect the purchase of the property. Neither Mr. Roe-diger nor Mrs. Jahn knew this, nor did they know anything about Mr. Brassell.</p> <p>The property was subsequently conveyed by Mr. Brassell to Mr. Gleason, who held the title thereto at the time of the trial of these actions.</p> <p>These actions were brought to set aside the deeds of August Roe-diger and Marie A. Jahn to Rodey S. Brassell, and of Rodey S. Brassell to Patrick J. Gleason.</p> <p>Appeal by the defendants, Patrick J. Gleason and another,'from a judgment of the Supreme Court in favor of the plaintiff in the second above-entitled action, ente2’ed in tbe office of tbe clerk of tbe county of Queens on the 22d day of March, 1895, upon the: decision of the court rendered after a trial at the Queens County Equity Term, with notice of an intention to' bring up for review upon such appeal an order made at the Queens County Special Term on the 18th day of March, 1895, and entered in said clerk’s office, granting the plaintiff an extra allowance.</p>

<p>Mechanics’ Lien Law — conveyance improperly recorded —priority of a lien subsequently filed — not destroyed by the lienor’s knowledge of the convey anee.</p> <p>The Mechanics Lien Law (Laws of 1885, chap. 343, § 5) declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of the filing of the notice of lien prescribed in that act.</p> <p>On April 13,1898, a deed was recorded in the register’s office of Kings county which was acknowledged in the State of New Jersey before a notary public of said State; attached to it was a certificate of the clerk of the proper county in New Jersey, to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same. It appeared that at the time of the taking of the acknowledgment a notary public in the State of New Jersey possessed no legal authority whatever to take the acknowledgment of deeds.</p> <p>Held, that the deed, being insufficiently acknowledged, had been improperly recorded; that, although a mechanic who filed a lien against the premises described in the deed on April 17, 1893, had constructive notice of the transfer of the pioperty, yet, under the statute, the lieyi would have, priority over the conveyance.</p>

<p>What does not constitute an equitable assignment of dividends of a corporation— effect of the absence of evidence in co case on appeal.</p> <p>In the year 1877 all the stock of a corporation known as the New York Iron Mine, save a few shares, was owned hy Messrs. Tilden and Wetmore. In April and May of that year Wetmore, being in Michigan, made three promissory notes for §5,000 each, in the name of the New York Iron Mine, and procured them to he discounted hy a hank. Wetmore, who had no authority to make any of these notes, made them intending when there should he a dividend of the New York Iron Mine, to pay these notes out of the share of the profits then coming to him as a stockholder of the corporation. This intention, however, he did not divulge to any one. When that dividend came to he made, Tilden insisted on the application of Wetmore’s share to the payment of other claims. , The notes were dishonored, and in July, 1877, Wetmore went into bankruptcy. After filing his petition in bankruptcy he made eutries in the books of the New York Iron Mine, kept hy himself in Michigan, charging the notes against himself as a debt due from him to said corporation.</p> <p>The hank which discounted the notes was informed that the notes were made without authority, hut it never regarded Wetmore as its individual debtor hy reason of his having made the notes.</p> <p>In an action brought hy the owner, through successive transfers, of the notes given to said hank, to reach certain dividends of the New York Iron Mine, declared in 1889, in which the estate of Wetmore was entitled to share,</p> <p>Held, that no equitable assignment or implied trust was created by Wetmore in favor of the hank ; that the action of Wetmore in charging the notes against himself on the hooks of the New York Iron Mine in Michigan, had no effect as to the hank, though it might he deemed an acknowledgment on his part that as between himself and the New York Iron Mine, the notes were to be treated as his individual obligations, and that the complaint was properly dismissed.</p> <p>Where a case on appeal contains no evidence, the findings of the trial judge, in relation to the facts, are to be taken as true, and the sole question before the court on appeal is whether the facts so found are sufficient to sustain the conclusions of law reached by the trial judge.</p>

Appeal by Henry H. Adams, as treasurer of the county of Kings, in the first above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 30th day of April, 1895, and entered in the clerk’s office of the county of Kings, directing that a writ of peremptory mandamus issue, commanding him to restore the name of the relator to the pay roll of the county of Kings, and to pay him the salary therein adjudged to be due him for…

Appeal by tlie plaintiff, J ames Talcott, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of March, 1894, upon the report of a referee, dismissing the complaint.

<p>Attachment — insufficiency of the affidavits.</p> <p>The affidavits upon which a warrant of attachment was granted, upon the ground that the defendant had fraudulently disposed of his property, after a statement of the plaintiff’s cause of action, recited in effect that the defendant had conveyed certain property to one Holtzberg, and while the conclusion was stated that such conveyance was fraudulently done there were no facts stated to support it. In addition, it was stated that the defendant at that time held the title to certain other premises, and that, with intent to defraud his creditors, he disposed of his equity in said premises by causing a pretended mortgage in favor of a third person to be recorded. The evidence to support the conclusion that such mortgage was fraudulent consisted of an affidavit which stated that two persons, alleged to be the real owners of the property, had admitted that such mortgage was fraudulent.</p> <p>Held, that such papers were insufficient to sustain the attachment.</p>

Appeal by the plaintiff, 'Winifred J. Mulry, individually and as testamentary trustee, etc., of William Mulry, deceased, from portions of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of January, 1895, upon the decision of the court rendered after a trial at the New York Special Term construing the last will and testament and codicil of William Mulry, deceased.