Digest. own survey, without any representations of the assured (Liddle agt. The Market Ins. Co. 29 N. Y. R. 184). 12. A mere oral contract of insurance, supported by a sufficient consideration, which is to take effect forthwith, although it may be entered into cotemporaneously with an agreement by the insurers to deliver, and the assured to accept subsequently, as a substitute therefor, a written policy by the former in the form usually adopted by them, becomes binding and remains in force until the delivery or tender of such policy. Until then, the condition usually inserted in such policies, requiring pre-payment of the premium to make them binding, unless expressly adopted by the parties in such oral contract, forms no part of the contract of insurance between them. A mere demand of the premium, without insisting upon it or tendering a valid policy, does not terminate the oral insurance (Kelly et al. agt. Commonwealth Ins. Co. of the State of Penn. 10 Bosw. 82). 13. Ambiguous words in a policy of insurance may be construed by extrinsic evidence of accompanying circumstances and the usages of the business in which the property insured was employed (N. Y. Belting and Packing Co. agt. Washington Fire Ins. Co. 10 Bosw. 428). bited or to be used as means and in- 16. The schooner Europa, owned by B., were ac 17. Held, also, that the defendant having accepted the abandonment of the freight list as for a total loss, the plaintiff was entitled to recover the full amount of the freight, the same as if the voyage had been completed, and not merely to freight pro rata itineris (Id). 18. A condilion, annexed to a policy of insurance, that no suit or action against the insurers, for the recovery of any claim upon the policy, shall be sustainable in any court of law or chancery, unless commenced within six months next after any loss or damage shall have occurred, is valid; and if an action is not commenced within that time it will be barred (Roach agt. N. Y. & Erie Ins. Co. 30 N. Y. R. 546). 14. Conditions in a policy of insurance, that no suit shall be sustainable thereon unless commenced within six months after a loss occurs, and also that the payment of losses shall be made in sixty days from the date of the adjustment of preliminary proofs of loss by the parties, must be so construed as not to conflict unnecessarily with each other; and where the parties, in good faith, and without any objection that unnecessary time is taken for the purpose, are occupied so long in adjusting proofs that sixty days from the date of adjustment does not expire within the six months, the policy does not become forfeited, merely because the suit is not brought within six months 19. The effect of the usual proviso and before the loss is payable. An against sales, in policies of insurance, action brought promptly upon the ex- is not to interdict sales of the owners piration of sixty days from the adas between themselves, but only sales justment of loss, is not barred because of proprietary interests by the parties commenced more than six months insured to third persons. The dicta after the loss occurred (Mayor, &c. of to the contrary, in the case of MurNew York agt. The Hamilton Fire dock agt. The Chenango Ins. Co. (2 Ins. Co. 10 Bosw. 537). Comst. 210), disapproved (Hoffmar agt. Etna Ins. Co. 32 N. Y. R. 405). 15. The keeping of articles to be exhi Digest. are 20. In the construction of contracts, words are not to be taken in their broadest import, when they equally appropriate in a sense limited to the object the parties had in view, and their apparent intent as deduced from the whole instrument. Where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee (Id). 21. Conditions and provisos in policies of insurance are to be construed strictly against the underwriters, as they tend to narrow the range and limit the force of the principal obligation. Every intendment is to be made against a construction of a contract under which it would operate as a snare (Id). 22. A negotiable promissory note payable absolutely upon its face, and given to a mutual insurance company, may be negotiated by such company in the usual and ordinary course of business (Farmers' Bank agt. Marwell, 32 N. Y. R. 579). 23. Where the company, by its charter, can issue policies either on the mutual or cash plan, it may receive, for such policies, promissory notes on time (Id). 24. Where the company has negotiated such note in the usual course of business, the title thereto is vested absolutely in the indorsee; and any subsequent arrangement which the company may make with the maker of such note in respect to its payment, without the assent or knowledge of the indorsee thereof, will not affect his rights or the rights of a bona fide holder of the same (Id). 66 25. A provision in the charter of a mutual insurance company that said company may receive notes for premiums in advance, from persons to receive its policies, and may negotiate the same for the purpose of paying claims, or otherwise, in the course of business," authorises such company to transfer its notes, thus received, as collateral security for the payment of its debts (Brookman et al. agt. Metcalf, 32 N. Y. R. 591). 26. The parties receiving from such company negotiable notes given for such purpose, and transferred as collateral security, are entitled to be protected as bona fide holders, to the same extent, and under the same circumstances as parties who become owners of such paper (Id). 27. The condition in a policy of insurance, that the instrument shall not be binding until actual payment of the premium, may be waived by a general agent of the company, by delivering the policy without exacting pre-payment. But there is no such waiver when the agent merely leaves the policy for examination, and requires the party, if he concludes to accept it, to pre-pay the premium in accordance with the condition (Wood agt. Poughkeepsie Ins. Co. 32 N. Y. R. 619). 28. Evidence that the agent of the company frequently waived the condition of pre-payment is not admissible to raise an inference of waiver in the absence of other proof tending to establish it (Id). See REFEREES and REFERENCE, 5. INTERPLEADER. 1. An action to compel defendants to interplead cannot be sustained where the plaintiff claims a portion of the fund in dispute. In such a case an injunction restraining the defendants from their actions against the plaintiff cannot be sustained (Wakeman agt. Dickey, 19 Abb. 24). 2. An application, by a stranger to a suit, to be allowed to intervene and be made a defendant, in order that he may litigate the plaintiff's claim and set up a claim against the original defendants averse to and exclusive of that of the plaintiff, is not a matter of strict right, but rests in the discretion of the court. Such an application should be denied where the applicant is prosecuting a separate action adapted to secure all the relief to which he claims to be entitled. So, too, after he has prosecuted such separate action to a trial upon the merits, an application made by him to have a judgment recovered in the former action set aside, on the ground of fraud and collusion, should not be granted (Scheidt agt. Sturgis, 10 Bosw. 606). Digest. that a third person had given defendants notice that he was owner of such moneys, and of any cause of action therefor, and demanded payment to himself, by virtue of an assignment from the plaintiff, is irrelevant (Carpenter agt. Bell, 19 Abb. 258). 2. A defence setting forth supplementary proceedings taken against the plaintiff by a judgment creditor, in which the plaintiff and the defendant had been forbidden to transfer, dispose of, or interfere with the property of the plaintiff, is not irrelevant. If the allegations of a defence are pertinent to the controversy, their sufficiency is only to be tested by demurrer or on the trial (Id). costs; for by the extinguishment of 2. It seems, that where the offer is 3. A defence set up in an original ans-4. wer is not to be struck out as irrelevant merely because the matter of it arose after suit brought (Id). See ANSWER, 10, 11. JOINT DEBTORS. 1. Section 136 of the Code, which pro- See WAIVER, 1. See PARTNERS AND PARTNER- JUDGMENT. Where the affidavit states that the facts stated in the above confession are true, it is in effect that the statement is true, and not merely that the facts only are true (Id). 5. Section 136 of the Code, which provides for the manner in which judgment may be entered against joint debtors, and enforced against the joint property of all, has not repealed the provision of the Revised Statutes which declares how far such a judgment shall be evidence of liability (Foster agt. Wood, ante 284). 6. Where a joint debtor has not been served with process, but judgment in form is entered against him under section 136 of the Code, he is not to be considered a "judgment debtor," within the meaning of section 376, providing for summoning his heirs, &c., to show cause why the judgment should not be enforced against them (Id). 7. Where a cause is tried upon issues of fact, by the court without a jury, the judgment entered upon the decision must not contain any provisions not embraced in the decision. The conclusions of law found by the court must contain all that goes into the judgment. If any thing is inserted in the judgment which is not contained in the decision, the judgment is not merely irregular, but is substantially erroneous, and will be reversed on appeal (Loeschigk agt. Addison, 19 Abb. 169). 1. Where the defendant after service of tiff's acceptance, serves an answer solutely void when there has been a defective statement, but is voidable only at the instance of a party in interest (Read agt. French, 28 N. Y. R. 285). A statement, alleging that the de Digest. fendants are indebted to the plaintiff in the sum of $3,300, which indebtedness arose on account of goods purchased in the year 1853; that the whole amount of the purchase was $3,500; and the amount remaining due is $3,300; that the goods consisted of cloths, trimmings, &c., and were purchased at P. where said plaintiff resides," is sufficient in point of form, although it is not alleged, in terms, that the goods were purchased by the defendants from the plaintiff; the words used plainly importing that fact (Id). 10. Judgment by default cannot be entered except upon proof of personal service of the summons and complaint. An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient (Id). 11. The admission of a defendant, of 12. A judgment by confession was en- 13. A statement as to the origin of the be sufficiently minute; unless it wa 14. A party who seeks to enforce in our See SUMMONS, 1. Seo JUSTICES' COURT, 10, 11. See SET-OFF. JURISDICTION. 1. A justice of the peace is not disqualified from trying a cause and rendering judgment therein, by reason of his having been a juror in an action between the same parties and for the same cause of action, wherein a verdict was rendered for the plaintiff (Travis agt. Jenkins, ante 152). 2. By giving to the wife and next of kin a right of action for compensation for the pecuniary injuries resulting to them from the death of the husband and relative, our statutes (1847 and 1849) in effect declare a right in the life of a person to exist in his wife and next of kin, and make the wrongful act, neglect or default, by which his death shall be occasioned, tortious as to them (Mahler agt. Norwich & N. Y. Trans. Co. ante 237). 3. Such act, neglect or default, has no 4. such character in the absence of the statutes, and as acts complained of as tortious must be such at the place of commission, an action brought under these statutes cannot be maintained if the collision and death occurred in the open sea, beyond the territorial limits of this state, for there our statutes have no force or effect (Id). Jurisdiction over Long Island Sound, was never acquired by treaty or grant, 33 Digest. as it was not involved in any manner in any of the treaties by which the limits of the province were settled, and the boundaries in the patent of King Charles Second to the Duke of York, do not include it. It has always been open as a part of the high seas to the use of all nations, and the state has never attempted to restrict such use, or to exercise any control over it (Id). 8. An action of tort, brought by the citizen of one foreign state against the citizen of another foreign state, for alleged injuries committed in one or both of those states, cannot be maintained in the courts of this state. Our courts have no jurisdiction of such an action (Latourette agt. Clark, ante 242). 6. The total omission of a fact, necessary to be proved to confer jurisdiction upon an officer, will make all his proceedings void (Merry agt. Sweet, 43 Barb. 475). 7. An allegation in a pleading, of an amount of unliquidated damages or a value, is not to be taken as true by an omission to deny it, except to sustain jurisdiction or show the performance of a contract requiring such value or the like (Id). JUSTICE'S COURT. 1. Where the plaintiff brings his action before a justice of the peace, and complains for trespass quare clausum fregit, and treading down and destroying grass and herbage there growing, and treading down, eating up and destroying corn, oats, wheat, apples, potatoes, and other grain and vegetables of the plaintiff, and the defendant answers by justifying "the acts of entering the close of the plaintiff, mentioned in the complaint," by averring a right of way across the locus in quo, with other defences-of neglect to keep proper fences-license and a general denial "as to the residue of the acts complained of," the defence of justification of entering the close, goes to the plaintiff's entire right of recovery for the trespasses charged, whatever other matters of defence are stated in the answer; and on the delivery to the justice of an undertaking with the answer, he is ousted of jurisdiction, and is bound to discontinue the proceedings-not only as to one or some of the alleged causes of action, but as to all, inasmuch as the defence of title to real property was interposed to all the trespasses charged in the complaint (Hall agt. Hodskins, ante 15). 8. In all actions, except those enumera- See CONSTITUTIONAL LAW. See TRIAL, 7. See CRIMINAL LAW, 1, 2, 3, 4, 5. See JUSTICE'S COURT, 10, 11. See CITY OF BROOKLYN, 1, 2. See TAXES AND ASSESSMENTS, 11. Be Where the action is prosecuted in the supreme court for the same cause and upon the same pleadings, and on the trial the plaintiff withdraws and abandons all claim for acts done on the road or right of way set up by the defendant, and recovers a small verdict for the other trespasses complained of on the other portions of the locus in quo, he is, nevertheless, entitled to the costs of the action. cause the gravamen of the complaint is trespass quare clausum fregit, and the destruction of the grass, herbage, grain and vegetables, are matters of description and aggravation, and the defendant having set up a right of way as to all the alleged unlawful entries charged, his defence goes to the whole matter of the complaint, and a recovery by the plaintiff, however small the amount, entitles him to costs (Id). See MAYOR'S COURT OF ALBANY, 1. 3. A justice of the peace is not disquali See SURROGATES, 1, 2. See EXECUTORS AND ADMINISTRATORS, 6, 7, 8, 9. fied from trying a cause and rendering judgment therein, by reason of his having been a juror in an action between the same parties and for the same cause of action, wherein a ver |