Opinion of the Court, per Andrews, J.

included such parts of the sea as were within the terræ fauces; and that only that part without was the sea, or the main sea, over which admiralty had jurisdiction. (See De Lovio v. Boit, 2 Gall., 398 and cases cited; Waring v. Clarke, 5 How. U. S., 441.) If the words main sea, in the compact between New York and New Jersey were used in the strict common law sense, the boundary between the two States at the point where the wreck was located was not defined. The nearest distance from shore to shore at this point, as we judge from an inspection of the maps, is eight or ten miles, and the true terræ fauces would probably carry the main sea, according to the common law definition, as far west as the line drawn. from Conaskonk point on the New Jersey shore, to Seguine point, on Staten Island. If, in construing the compact between the States, this should be taken as the line dividing the main sea from the waters or arms of the sea, it would follow that only a small portion of the boundary line between Staten Island and the New Jersey shore was defined by the treaty, and it would leave the boundary of this State east of this line, as it was defined in the revision of 1830. This result would make the locality of the wreck within Richmond county. But we express no opinion upon the construction of the words main sea, used in the compact, and in deciding this case shall accept the admission of both parties, that they refer to the open uninclosed ocean, divided from the waters of the bay of New York by a line drawn from Sandy Hook to the opposite shore at Coney Island.

The boundary south of Staten Island is defined in the compact as a line passing through the middle of the waters "of Raritan bay to the main sea.' There was no evidence given on the trial as to how far Raritan bay, as it was known in 1833, extended towards the main sea. The chart of the coast survey, made twenty years subsequent to 1833, represents a bay, called on the chart the Lower bay, as lying between Raritan bay and the main sea. Both bays constitute one continuous body of water, not separated by any natural features or divisions. The learned referee assumed, in

Opinion of the Court, per ANDRews, J.

deciding the case, that Raritan bay in 1833 extended eastward only to the Lower bay, as represented on the chart, and found the middle line mentioned as the boundary, to be a line drawn through the center of Raritan bay to the west line of the Lower bay, and protracted from thence through the Lower bay to the main sea at Sandy Hook. This line leaves the locality of the wreck a short distance north of the line. But it seems to us that the General Term was right in saying that the description calls for but one bay from the mouth of the Raritan river to the ocean. The whole body of water lying west of the main sea, including what is now known as the Lower bay, and Raritan bay was designated in the description as Raritan bay. This view is strengthened by the description in the boundary of the State in the statute of 1830, which runs the boundary south of Staten Island, along the west shore "of the sound between Staten Island and New Jersey, and of Raritan bay to Sandy Hook," showing that Raritan bay was then understood to extend to Sandy Hook.

The locality of the wreck, as has been stated, was nearer to the New Jersey shore than to Staten Island. The middle of Raritan bay, where it joins the main ocean, is the centre of a line from Sandy Hook to Coney Island, and at any other point it is, we think, the centre of the shortest line between the New Jersey coast and Staten Island, and this leaves the wreck on the New Jersey side of the dividing line between the two States. There is no precedent, so far as I know, to guide us in determining the question presented. The shore lines of Staten Island and New Jersey are not parallel, and the outline of the New Jersey coast is very irregular. I do not see how, in locating the boundary, we can reject Sandy Hook as an element in the question, and I see no other way of ascertaining where is the middle point of the waters between the two States, than the one suggested.

The order should be affirmed.

All concur, except RAPALLO, J., absent.

Order affirmed, and judgment absolute against appellants.

Statement of case.

THE CONNECTICUT FIRE INSURANCE COMPANY, Appellant,

V. THE ERIE RAILWAY COMPANY, Respondent.

If a loss under a policy of fire insurance is occasioned by the wrongful act of a third person, the insurer, upon payment, is subrogated to the rights and remedies of the assured, and may maintain an action against the wrong-doer.

If the assured receives the damages from the wrong-doer before payment by the insurer, the amount so received will be applied pro tanto in discharge of the policy.

If the insurer, after payment of the damages by the wrong-doer to the assured, voluntarily pays the policy, he cannot maintain an action against the wrong-doer.

If the wrong-doer pays the assured after payment by the insurer, with knowledge of that fact, it is a fraud upon the latter, and will not protect the wrong-doer from liability to him.

Plaintiff issued a policy of insurance for $1,500 to M. upon certain buildings, which were subsequently destroyed by fire through the negligence of defendant; the buildings were worth $3,400. M. received from defendant $1,800 for his damages, he executing a release of all claims and demands for the loss; the release contained a statement that the settlement was not intended to discharge plaintiff from any claim of M. against it, but simply as a full settlement and discharge of defendant. Plaintiff thereafter paid the amount of the insurance. In an action to recover the amount paid, held, that the clause in the release as to the claim against plaintiff was in the nature of a proviso or exception from the general purview of the release, limiting its effect to a release of the balance, retaining the claim against plaintiff, and excepting its rights to a remedy over; and, therefore, as to the plaintiff, the release was of no effect, it could not have interposed it as a defense upon the policy, and its right to subrogation was not affected thereby.

As to whether the effect of the release would have been different if the
assured had received the full amount of the loss, quære.

Also, held, that the action was properly brought in the name of plaintiff.
The Connecticut Fire Ins. Co. v. Erie Railway Co. (10 Hun, 59), reversed.

(Argued April 3, 1878; decided April 23, 1878.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendant, entered upon an order setting aside a verdict in favor of plaintiff, and dismissing the complaint. (Reported below, 10 Hun, 59.)

This action was brought to recover the amount of a loss

73 399 108 364

73 399 118 327

Statement of case.

paid by plaintiff, under a policy of insurance issued by it, which loss it alleged was occasioned by defendants negligence.

M. H. Hirschberg, for appellant. On payment of the policy plaintiff was equitably subrogated to a right of action against the defendant, arising out of the latter's liability to compensate the owner for the destruction of his property by its negligence. (Randal v. Cockran, 1 Ves. Sen., 98; Blauwpot v. Da Costa, 1 Eden, 130; Mason v. Sainsbury, 3 Douglas, 61; London Ass. Co. v. Sainsbury, 3 id., 245; Clark v. Inhabitants of Blything, 3 Dow. & Ry., 489; Mellon v. Bucks, 17 Martin [La.], 371; Comegys v. Vasse, 1 Pet., 193; Yates v. White, 4 Bing. [N. C.], 272; Hooper v. Whitney, 19 La., 267; White v. Dobinson, 14 Sim., 273; Hart v. Western R. R. Co., 13 Metc., 99; Gales v. Hailman, 11 Penn. S. R., 515; Quebec Fire Ins. Co. v. St. Louis, 1 Low. Can., 222; S. C., 7 Moore P. C., 386; Mercantile Marine Ins. Co. v. Corcoran, 1 Gray, 75; Propeller Monticello v. Mollison, 17 How. [U. S.], 152; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me., 253; Garrison v. Memphis Ins. Co., 19 How. [U. S.], 312; Perrot v. Shearer, 17 Mich., 48; Dickenson v. Jardine, 3 L. R. C. P., 639; Clark v. Wilson, 103 Mass., 219; North of Eng. Ins. Co. v. Armstrong, 5 L. R. [Q. B.], 244; Monmouth Co. Mut. Fire Ins. Co. v. Hutchinson, 6 C. E. Green, or 21 N. J. Ch., 107; Hayward v. Cain, 105 Mass., 213; Harding v. Town of Townshend, 43 Vt., 536, and 5 Am. Rep., 304; Home Ins. Co. v. North-west. Packet Co., 32 Ia., 223, and 7 Am. Rep., 183; Hall & Long v. The Railroad Co.'s, 13 Wall. [U. S.], 367; Weber v. Morris and Essex R. R. Co., 35 N. J., 409, and 10 Am. Rep., 253; Newcomb v. The Cincinnati Ins. Co., 22 Ohio St., 382, and 10 Am. Rep., 746; Commercial Union Ins. Co. v. Lister, 9 Eng. Rep., 572; Gracie 7. N. Y. Ins. Co., 8 J. R., 237; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch., 621; S. C. on appeal, 5 Paige, 285; Etna Fire Ins. Co. v. Tyler, 16 Wend., 397; Hosack v. Rogers, 6 Paige, 415; Rogers v.

Statement of case.

Hosack's Exrs., 18 Wend., 319; Rentz v. Receiver of Etna Fire Ins. Co., 9 Paige, 569; Collins v. N. Y. C. and H. R. R. R. Co., 5 Hun, 503; Merrick v. Brainerd, 38 Barb., 574; Home Ins. Co. v. Western Trans. Co., 33 How., 102; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182; 2 Phillips on Insurance, §§ 1711, 1723, 1724; Dixon on Subrogation, chap. viii.) The action was properly brought in the name of the insurance company. (London Ass. Co. v. Sainsbury, 3 Douglas, 245; Garrison v. Memphis Ins. Co., 19 How. [U. S.], 317; Cummings v. Morris, 25 N. Y., 627; Code, §§ 144, 147, 148; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 184.) The plaintiff's action was not barred by Martin's release, and that release affords the defendant no defense. (1 Phillips on Ins., § 81; 2 id., § 2160; Timan v. Leland, 6 Hill, 237; Andrews v. Becker, 1 Johns. Cas., 411; Wheeler v. Wheeler, 9 Cow., 34; Phillips v. Claggett, 11 Mess. & Welsb., 84; Anderson v. Van Allen, 12 J. R., 343; Dawson v. Coles, 16 id., 51; Briggs v. Dorr, 19 id., 95; Jackson v. Blodget, 5 Cow., 202; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391; Ennis v. Harmony Ins. Co., 3 Bosw., 516; Hart v. Western R. R. Corp., 13 Metc., 108; Clark v. Wilson, 103 Mass., 223; Monmouth Co. Mut. Fire Ins. Co. v. Hutchinson, 6 C. E. Green, or 21 N. J. Ch., 107; Home Ins. Co. v. Western Trans. Co., 33 How., 102; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch., 621, 627; S. C. on appeal, 5 Paige, 285.)

Lewis E. Carr, for respondent. The settlement with and release of defendant extinguished the claim against it. (1 Greenleaf on Evi., 278; Creery v. Holly, 14 Wend., 26; Pohalski v. Mut. Life Ins. Co., 36 Sup. Ct. R., 234; East Hampton v. Kirk, 6 Hun, 257; Thomas v. Truscott, 53 Barb., 200; Taylor v. Baldwin, 10 id., 582; Jackson v. Andrews, 59 N. Y., 244, 247; Leavitt v. Palmer, 3 id., 19; Coon v. Knapp, 8 id., 402; Pierson v. Hooker, 3 J. R., 68; Commercial Ass. Co. v. Lister, 9 Eng. Rep. [Moak's Notes], 572, 573, note; Hall v. Nash. and Chat. R. R. Co., 13 SICKELS-VOL. XXVIII.

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