or had reason to suppose that understanding to be, should be submitted to the jury, but contented himself with an exception to the instruction quoted. The judgment should be affirmed, with costs. All concur. (12 Misc. Rep. 1.) CREE v. BRISTOL. (Common Pleas of New York City and County, General Term. April 1, 1895.) CONTRACTS-INTERPRETATION-EXPRESSIO UNIUS. An express provision in a contract for forfeiture of rights under it precludes an implication of other causes of forfeiture. (Syllabus by the Court.) Appeal from trial term. Action by Helen K. Cree against John I. D. Bristol. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. Argued before BISCHOFF, PRYOR, and GIEGERICH, JJ. Henry A. Powell, for appellant. PRYOR, J. The plaintiff, as assignee, sues for commission on renewal premiums; and whether she be entitled to recover depends upon the construction of the contract on which she founds her action. The defense is that by an express provision of the contract plaintiff's assignor was to be paid his commission "while he retained his agency, and no longer," and that his right was lost by a termination of the agency. But this term of the contract is a general regulation of the relations of the parties, and is subject to qualification by its special provisions, namely: First, in case of the death of the defendant, or the discontinuance of his connection with the company, the plaintiff's assignor should be entitled to the commission for two years; secondly, in case of the death of the plaintiff's assignor his representative or widow was to be paid the commission for two years; and, thirdly, in the event the plaintiff's assignor should cease "active and reasonable effort for new business for the company, he should receive the commission for two years." The decision turns upon the distinction between a total termination of the agency and a languid and inefficient execution of a continuing agency. The plaintiff's assignor became "a free lance," and so ceased to be the exclusive agent of the company; but this with the consent of defendant, and upon the express understanding that his renewal commission was not to be forfeited. The defendant contends, however, that in any event the agency was ended by his discharge of the plaintiff's assignor. But the contract makes specific provision for the forfeiture of the commission by dismissal, namely, when the plaintiff's assignor "shall neglect or fail to pay over any moneys or property, then and from thenceforth the agency hereby created shall at once cease and determine, and thereafter be at an end; and said agent shall not thereafter be entitled to any commissions or compensation for any renewal premiums" It is not pretended that the discharge of plaintiff's assignor was for the cause here distinguished, and the rule of expressio unius would prevent a forfeiture of his right for any other default. It is argued that the general provision that the plaintiff's assignor should receive the commission only while agent suffices to defeat the action. But the language is, "while he retains the agency," plainly discriminating between a voluntary renunciation of his rights and a compulsory forfeiture of them by the act of the defendant. Whether, within the sense of the contract, the agency of the plaintiff's assignor had been determined, was a question for solution upon conflicting evidence; and that issue, submitted in a charge acceptable to the defendant, the jury have decided against him. We see no reason to disturb the verdict. Judgment and order affirmed, with costs. All concur. (12 Misc. Rep. 31.) BURKE v. TINDALE. (Common Pleas of New York City and County, General Term. April 1, 1895.) 1. LANDLORD AND TENANT-COVENANT FOR QUIET ENJOYMENT-BREACH. A covenant in a lease that the tenant should peaceably and quietly hold and enjoy all the demised premises is not broken by the removal, by the department of public works of the city, from the leased building, of a show window constructed by the lessee under a provision of the lease. where such provision was inserted at the end of the lease, and after a covenant of quiet enjoyment. 2. SAME-VALIDITY OF LEASE-UNLAWFUL STRUCTURE. A provision inserted in a lease, at the end thereof, authorizing the lessee to erect an unlawful structure, does not invalidate the lease so as to defeat the lessor's right to rent, since such structure forms no part of the demised premises for which the rent was reserved. Appeal from trial term. Action by Harriet E. Burke against Terry J. Tindale for rent. From a judgment entered on a verdict in favor of plaintiff, directed by the court, defendant appeals. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Stephen C. Baldwin, for appellant. Tallmadge W. Foster, for respondent. DALY, C. J. The action was for rent, and the defense was eviction under title paramount. The eviction complained of was the removal, by the department of public works of the city of New York, of a show window which encroached upon the public street, and which was erected by the tenant under the following clause of his lease: "And it is further agreed that the party of the second part has the right to erect a show window similar to the one now being put in 157 Broadway, and, upon presentation of the receipted bills for the same, the party of the first part agrees to allow and pay the sum of three hundred dollars ($300) of the first two months' rent. The said window, when completed, to belong to the property." The demised premises are described in the lease as "the south store in the building known by the street numbers 155-157 Broadway," and the covenant of quiet enjoyment was that the tenant should peaceably and quietly hold and enjoy all said demised premises. The clause giving the lessee the right to erect a show window is inserted at the end of the lease, after all the other provisions, and after the covenant for quiet enjoyment. It thus appears that the show window was no part of the demised premises, not being included in the description, and is not covered by the covenant for quiet enjoyment, not being referred to by the terms of the covenant; and the removal of the window was not, therefore, an eviction from the demised premises, nor a breach of the covenant. The window was not an appurtenance of the demised premises, as it was not in existence at the time of the lease, but was subsequently to be constructed and added by the tenant. Nor does the provision that the window, when erected, should belong to the property, make it a part of the premises as demised. This provision was for the benefit of the lessor, not of the lessee, and to prevent the latter removing the structure at the expiration of the term. The window was not removed by the lessor, but by the city authorities. If the lessor had removed it, he would be liable, if at all, for damages for breach of his agreement permitting the lessee to construct it; but he would not be liable for eviction. As it was an incumbrance upon the public street, he might not be liable in any event for removing it under orders from the proper authorities. As it was not removed by him, he is not liable to the lessee, because he has not covenanted to maintain the structure, nor in any way assured to the lessee the right to maintain it. The contingency of the exercise by the city authorities of the power to remove it must have been contemplated by both parties, and has not been guarded against by any provision of the lease. It is urged that the lessor, by an independent parol agreement, agreed to maintain the window, and that the court erroneously excluded evidence thereof. The defense was not pleaded. The answer set up that the lease was taken upon the agreement that the show window to be erected should form part of the demised premises, and that, pursuant to said understanding, and upon defendant's request and express insistence, the provision in question was inserted in the lease. This sets up no defense. The lease contains the provision as defendant would have it, and is not broad enough to give him the relief which he now seeks, namely, the right to abandon the premises in case of the removal by the municipal authorities of the bay window. The contention that the structure permitted by the clause in question was unlawful, and that neither party can enforce the covenants of the lease, is untenable. The rent sued for is not reserved for the use of the show window, but for the demised premises, of which it forms no part. The lessor is not seeking to enforce any provision respecting the show window. The lessee is claiming under it as matter of defense to the rent; not because it is unlawful, but because it was a lawful contract, and under it he had a right to abandon the premises. But, as we have seen, neither the written lease nor the agreement set up in the answer gives him any such right. Judgment affirmed, with costs. concur. All (12 Misc. Rep. 10.) BERNARD v. UNITED LIFE INS. ASS'N. (Common Pleas of New York City and County, General Term. April 1, 1895.) 1. INSURANCE-AGENT OF INSURER OR INSURED-RECITAL IN APPLICATION. Although in the application for insurance the applicant stipulate that the person taking the application shall be his agent, still, if such person be in fact the agent of the company in taking the application, the stipulation is ineffectual to make him agent of the applicant. 2. SAME-CONDITIONS-ESTOPPEL TO ASSERT BREACH. To an interrogatory in an application for insurance the applicant returned a true answer; but the agent taking the application knowingly and intentionally, without the privity of the applicant, substituted and inserted a false answer. Held, that defendant is estopped to allege the false answer as a defense to an action upon the policy issued on the application. (Syllabus by the Court.) Appeal from city court, general term. Action by Mary C. Bernard against the United Life Insurance Association on a policy of life insurance. The answers in the application were made part of the policy and warranties, whether writ ten by the applicant or not; and plaintiff agreed that "the person taking this application shall be the agent of the applicant." From a judgment of the city court (32 N. Y. Supp. 223) affirming a judgment entered on a dismissal of the complaint, plaintiff appeals. Reversed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Harry Wilber, for respondent. PRYOR, J. The complaint was dismissed upon a misapprehension of the case. The learned trial judge conceived plaintiff's contention to be that the condition in the application had been waived by the defendant; and he ruled, correctly enough, that such waiver was ineffectual, because not by an authorized agent, nor in writing, signed by the president or vice president and secretary or assistant secretary of the company, in conformity with the terms of the policy. The decision at general term proceeded on the same theory of inoperative waiver. The claim of the plaintiff, however, as disclosed by the evidence, is an estoppel. In brief, the case is this: A daughter, for whom the defendant insured the life of her mother, sues upon the policy; and she is confronted with the fact that an answer in the application is false. In avoidance of the defense, her reply, and it is not contradicted, is that she stated the truth to the agent of the company; that he knowingly and intentionally substituted a falsehood in the application; and that she did not learn of the perversion of her answer "until three months after mother's death, when I went to collect it, and then they brought this against me." But, rejoins the defendant, you have stipulated that "the person taking the application shall be your agent as to all statements and answers in the application," and therefore not we, but you, are responsible for his acts; and so the policy is forfeited by the falsehood in the application. The question is, was Donovan the agent of the defendant in taking the application? He was the company's agent to solicit insurance; he wrote out the application; he brought it to the plaintiff; he took and inserted her answers in it; he gave it to her to procure her mother's signature to it; she returned it to him, and he "turned it in to the company." So far, beyond possibility of doubt or denial, Donovan was the agent of the defendant in taking the application. Insurance Co. v. Wilkinson, 13 Wall. 222, 232. Nevertheless, it is urged that, by virtue of the provision in the application, Donovan became plaintiff's agent in the act of inserting her answers in the application, with the consequence that, although not she but the defendant employed him, and although in taking her answers he was serving the defendant, not her, still his fraud was her fraud, not the fraud of the defendant, and for such fraud she must suffer the forfeiture of her policy, and the defendant be allowed to retain the two years' premiums paid upon it. So absurd and iniquitous a result is shocking to the sense of justice; and we are to inquire whether it be any more consistent with the rules of law. In reason, no formula of words can effectually alter the nature of things, and transmute the actual agent of one party to a negotiation into the agent of the other. Whited v. Insurance Co., 76 N. Y. 415, 420. If, then, Donovan was, in fact, the agent of the defendant, the defendant has stipulated for security against its own fraud, which is contrary to fundamental principles. Hence, conformably with justice and common sense, it is adjudged that, despite any agreement to the contrary, an agent of the company, in taking an ap plication for insurance, is still quoad hoc the agent of the company. Bushaw v. Accident Co. (Sup.) 8 N. Y. Supp. 423, 424. Notwithstanding, then, the confusion of characters so craftily contrived by the defendant to elude its righteous obligation, Donovan continued its agent; his acts were its acts, his fraud its fraud; and, as against the innocent plaintiff, the defendant is estopped to allege the false answer in the application in bar of the action. The plaintiff warranted the truth of the statements in her answers; and they would have been true but for the fraud of defendant's agent. Now, one may not rely on a nonperformance of which he was himself the occasión. Miller v. Insurance Co., 107 N. Y. 292, 296, 14 N. E. 271; O'Brien v. Society, 117 N. Y. 310, 318, 22 N. E. 954; Bushaw v. Accident Co. (Sup.) 8 N. Y. Supp. 423, 424; Bentley v. Association (Sup.) 5 N. Y. Supp. 223-225, and cases cited. The only defense apparent in the evidence being unavailable to defendant, the court erred in the dismissal of the complaint. Judgment reversed, and new trial ordered, costs to abide the event. All concur. (12 Misc. Rep. 3.) HOFMAN v. SEIXAS. (Common Pleas of New York City and County, General Term. April 1, 1895.) 1. DISCOVERY-DEFECTS IN APPLICATION-WHEN CURED BY ORDER. Too great generality in an application for inspection of books is cured by particularizing the books in the order. |