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the defendant was in no wise aggrieved by the order, and has no status to appeal. It may very well be that the appeal, although in the name of the defendant, is solely the act of his attorney, but we are bound by the record in regard to the identity of the appellant, and cannot assume that the attorney has appealed in the absence of any notice of appeal in his name or behalf. Indeed, the notice of an appeal taken by him would have to be served upon his client, the defendant, and upon such an appeal the defendant would be a respondent.

In this condition of the record we have no alternative but to dismiss the appeal.

WOODWARD, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. Appeal dismissed, without costs.

CHARLES DE KAY TOWNSEND and MARIA F. TOWNSEND, Appellants, V. THE GREENWICH INSURANCE COMPANY OF THE CITY OF NEW YORK, Respondent, Impleaded with LOUISE C. BLYTH, Defendant.

Fire insurance policy — an oral agreement contemporaneous with a written agreement of appraisal is incompetent — the appraisers fix the loss not the liability — notice of the appraisers' meeting is not essential -a loss paid under a mortgagee clause to the mortgagee must be tendered before suit by the owner. evidence disregarded on a motion to direct a verdict.

incompetent

Where, after a loss under a policy of fire insurance, the insured and the insurance company enter into a written agreement for an appraisal of the loss, evidence that it was orally agreed between the parties, contemporaneously with the execution of the written agreement, that the only question to be submitted to the appraisers was whether the loss should be fixed at $3,000 or $7,000 is incompetent, in the absence of proof that the written agreement was obtained by fraud or mistake.

Where the appraisers fix the loss at less than the full amount of the policy, and such amount has been paid over to a mortgagee of the insured property as provided by a mortgagee clause contained in the policy, the owners of the insured property, cannot, without returning or offering to return the amount paid over to the mortgagee, maintain an action against the insurance company to recover the full amount of the policy, because of the alleged oral agreement limiting the power of the appraisers, even if such oral agreement be effective. The provision in the standard policy of fire insurance, that, in the event of a disagreement, the amount of the loss shall be determined by appraisers, contem

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. plates that the determination of the appraisers shall fix, not the liabilities of the parties under the law, but the value of the property destroyed.

This provision does not oust the court of any part of its jurisdiction, and, in the absence of bad faith, the mere fact that the parties are not given notice of the meetings of the appraisers does not affect the validity of their proceedings. Upon a motion to direct a verdict the court may disregard incompetent evidence admitted upon the trial.

APPEAL by the plaintiffs, Charles De Kay Townsend and another, from a judgment of the Supreme Court in favor of the defendant, The Greenwich Insurance Company of the City of New York, entered in the office of the clerk of the county of Nassau on the 19th day of November, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the Nassau Trial Term, and also from an order entered in said clerk's office on the 18th day of November, 1902, directing said verdict and judgment in favor of said defendant.

Abel Crook [Mortimer S. Brown and William D. Gaillard with him on the brief], for the appellants.

Michael H. Cardozo, for the respondent.

WOODWARD, J.:

The plaintiffs in this action were the owners of a certain hotel property, known as the Seawanhaka Hotel, in the town of Oyster Bay. This property was insured by the defendant, which wrote a standard policy, with a mortgagee clause, payment to be made to the defendant Louise C. Blyth in case of loss. The latter, at the time of the fire in which the loss in controversy was incurred, held a mortgage for the sum of $20,000 upon the premises, and two other insurance companies stand in the same position as the defendant insurance company in this action. The defendant Louise C. Blyth declined to join as a plaintiff in this action, and was made a defendant. The building upon which the policy was written was consumed by fire on the 4th day of March, 1901. Subsequently a controversy arose over the valuation put upon the property by the plaintiffs, and the defendant insurance company, acting under the provisions of the policy, entered into a written agreement with the plaintiffs for the appointment of appraisers to determine the amount of the loss. These appraisers appear to have been chosen in the

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manner pointed out by the policy; the plaintiffs selected one, the defendant insurance company one, and the two so chosen elected an umpire; and the three appraisers joined in an appraisal, finding the loss to have been $4,156.58. This finding was made in writing, signed by all three of the appraisers, and the proportion of this amount which was due from the defendant insurance company was fixed at $1,484.50. This latter sum the defendant insurance company paid over to the mortgagee, taking her receipt in full for all demands against the company. The plaintiffs bring this action to recover the full amount of the policy, without returning or offering to return the amount which has concededly been paid to the mortgagee for their benefit, and claim that they have a right to recover because the agreement for the appointment of appraisers was brought about by the understanding between the plaintiffs and defendants' agent that the only question to be submitted to the appraisers was whether the loss should be fixed at $6,000 or $7,000. The plaintiffs insist that two of the insurance companies interested in the loss were willing to fix the sum at $7,000, but that the defendants claimed that the loss was only $6,000, and that it was this difference which was to be adjusted by the appraisers. The defendants, however, show that the written agreement called for the appraisal provided for by the policy, and, while the learned court at Trial Term permitted the plaintiffs, over the objection and exception of the defendants, to introduce evidence tending to establish their contention, there can be no doubt that this was error, and that the court, upon a motion to direct a verdict, had a right to disregard this testimony. (Wilson v. Deen, 74 N. Y. 531; Bohleber v. Waelden, 150 id. 405, 410.) An oral contemporaneous stipulation, not embraced in the writing, is ineffectual to control its effect. (Bohleber v. Waelden, supra, 410, and authorities there cited.) The learned court submitted the questions to the jury, reserving all questions of law, whether the appraisal was to be limited to the question of the value of the property above $6,000, and as to the actual value of the property destroyed, and both of these findings were favorable to the contentions of the plaintiffs; but in disposing of the defendants' motion to direct a verdict, the learned court held that the evidence offered to change the terms of the agreement to fix the damages by a commission of appraisal was improperly in the case, and directed that

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judgment be entered in favor of the defendant insurance company upon the merits, with an extra allowance of five per cent upon the amount claimed in the complaint. The plaintiffs appeal from this judgment.

In the absence of proof of fraud or mistake, there can be no doubt of the correctness of the disposition which the learned court has made of this case (Wilson v. Deen, supra), and we are clearly of opinion that the plaintiffs failed to show that the agreement was entered into by reason of any legal fraud practiced upon them by the defendant insurance company. It is quite probable that the defendants' agent in the course of the negotiations assumed that the amount of the loss was $6,000, and that there was some talk that the question was practically to determine whether the loss should be fixed at $6,000 or $7,000, but there is no suggestion in the evidence that any one was deceived as to the terms of the written agreement which was signed by the parties, and this gives no intimation that there is any reservation of any question affecting the amount of the loss, and the evidence does not show that either the plaintiffs or the defendants made such a suggestion to their representatives on the commission of appraisal. All that may be gathered from this agreement, which is to be read in the light of the policy of insurance, is that the parties have disagreed as to the amount of the damages, and that they have acted upon the provisions of the policy and selected their appraisers, who are to determine this fact. If this agreement, the terms of which were fully known to all of the parties, did not express the understanding of the plaintiffs and defendant insurance company, they have only themselves to blame, and the courts cannot be expected to overturn well-established rules of law to enforce conditions which the parties have not thought it necessary to include in their writings.

The plaintiffs insist upon referring to the appraisers as arbitrators, and urge various matters which might be of importance if they were, in fact, arbitrators, among them that the plaintiffs never had any notice of the meetings of the appraisers, etc. The provision of a standard insurance policy that in the event of a disagreement the amount of the loss shall be determined by "two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disin

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terested umpire," contemplates that each party shall have a representative, each having an equal voice in the selection of the umpire, and that the determination shall fix, not the liabilities of the parties under the law, but the amount of the value of the property destroyed. This does not oust the court of any part of its jurisdiction, and, in the absence of bad faith, the mere fact that the parties are not given notice of the meetings of the appraisers does not affect the validity of their proceedings. The appraiser selected by the plaintiff is his representative; he is chosen for the purpose of guarding the rights of the man who selects him, and it must be assumed, in the absence of evidence to the contrary, that he has discharged this duty, and that the plaintiff has had an opportunity of being heard if such a hearing was necessary to the preservation of his rights. In the case at bar, if the plaintiffs had been notified of the meetings and had attempted to govern the action of the appraisers by insisting upon their present contention, that the powers of the latter were limited to the question of the difference between $6,000 and $7,000, it would have been the duty of the appraisers to have refused to read this condition into the contract, and it does not appear that there was any lack of information on the part of the plaintiffs' representative as to the value of the property, or that he was in any way guilty of any misconduct. He joined in the award, and as no erroneous rule of action was shown, there is no reason why the plaintiffs should not be bound by the result of this appraisal, which they had contracted to abide by in procuring their insurance. (Silver v. Western Assurance Co., 164 N. Y. 381, 383, 384.) The defendant insurance company has accepted the result, has paid over the money to the defendant Louise C. Blyth, and the latter has refused to become a plaintiff in this action, although it appears that she had a very substantial mortgage upon the premises, and was entitled to all of the moneys which might become due upon this and other policies.

It is not necessary to determine whether the contract of insurance, with its mortgagee clause, was such that the plaintiffs could have no cause of action, but it seems to be well settled that under the circumstances of this case it was necessary, before the action could be maintained by any one, that the amount which had been paid for the benefit of the plaintiffs, under the forms sanctioned by the terms of the policy, should have been offered to the defendants in the plead