Page images
PDF
EPUB

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

ference here with the sound discretion exercised by the court at Trial Term.

The order appealed from should be affirmed, with costs.
BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.

Order denying motion for new trial on the ground of newlydiscovered evidence affirmed, with coste.

JOSEPHINE A. CHEEVER, Respondent, v. BRITISH-AMERICAN INSUR

ANCE COMPANY OF New York, Appellant.

Fire insurance -a defense of fraud must be pleaded.

In an action to recover upon a policy of fire insurance, containing a clause that

fraud and false swearing on the part of the insured shall vitiate the policy, evidence of such fraud and false swearing is not admissible under a general

denial. Defenses which assume or admit the original cause of action alleged, and are

based upon subsequent facts or transactions which go to qualify or defeat such cause of action, must be pleaded and proved by the defendant.

APPEAL by the defendant, the British-American Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 2d day of October, 1902, denying the defendant's motion for a new trial made upon the minutes.

Donald McLean [Albert Ritchie with him on the brief], for the appellant.

Hugo Wintner, for the respondent.

WOODWARD, J.:

The defendant issued an insurance policy to the plaintiff for an amount not exceeding $2,000. One thousand dollars of this policy was written upon the household furniture and $1,000 on certain wines, liquors, etc., used npon the premises. The complaint alleges ownership in the plaintiff, issuance of the policy, the payment of

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

the premium and the destruction of the property during the life of the policy, and that the plaintiff had duly performed all the conditions in said policy on her part to be performed, and had given due notice and proof of loss to defendant. The answer denied knowledge or information sufficient to form a belief as to the ownership of tho property insured, as to the destruction of the property by fire, as to the amount of the loss and damage, and as to whether the plaintiff had performed all of the conditions in said policy on her part to be performed; as to whether the plaintiff had given due notice and due proof of loss, except that defendant admitted receiving notice of an alleged loss; that sixty days had elapsed since then, and that payment of $2,000 had been demanded and payment refused.

Upon the trial the plaintiff introduced evidence in support of the allegations of her complaint which had been controverted, and the defendant placed witnesses on the stand to testify that some portions of the goods, alleged to have been in the building at the time of the fire, had been removed. This evidence, competent for the purpose of arriving at the amount of the plaintiff's loss, was sought to be made use of by the defendant as evidence of fraud and false swearing, which, under the terms of the policy, would vitiate the instrument. The learned trial justice refused to perinit this use of the evidence, and charged the jury that there was no issue of fraud or false swearing tendered by the pleadings, and that there was no such question before them. This charge to the jury, with various intermediate rulings upon the same point, constitutes the only question presented upon this appeal, the jury having found a verdict for the plaintiff for $1,566 instead of the full face of the policy.

We are of opinion that the case does not present reversible error. The defendant might disprove, under a general denial, anything which it was necessary for the plaintiff to establish, but it has never been held, so far as we discover, that it was incuinbent upon a plaintiff in an action of this character to prove, what the law presunes, that he has not been guilty of fraud. The general rule of pleading, which is in accord with reason, is that defenses which assume or admit the original cause of action alleged, but are based upon subsequent facts or transactions which go to qualify or defeat it, must be pleaded and proved by the defendant. (Farmers' Loan & Trust Company v. Siefke, 144 N. Y. 354, 360.) The plaintiff

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

pleaded and established by the evidence all of the facts made necessary by her policy, and she was entitled to recover, unless the policy had been forfeited by her fraud or false swearing. If the defendant had reason to believe that it had been fraudulently dealt with, it was its duty to have alleged the facts constituting the fraud as a defense, in this way tendering an issue to be tried. This could not be done under a mere general denial of the allegations of the complaint, for the plaintiff was not called upon to prove absence of fraud. (See Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 576, 580.)

The judgment and order appealed from should be affirmed, with costs.

BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.

Judgment and order affirmed, with costs.

NICHOLAS V. Cody, Appellant, v. Mary E. DEMPSEY, Respondent,

Impleaded with FREDERICK BELTZ.

Reai estate broker - when his commissions are earned - what writing constitutes a

substantial compliance with section 640d of the Penal Code requiring the written authority of the owner of land to one offering it for sale the section does not bar commissions the section is unconstitutional.

William Dempsey, who was attorney in fact for Mary E. Deropsey, the owner of

a tenement bouse in the city of New York, employed Thomas F. Cody to sell or exchange the tenement house in such a way as to realize $35,000 or $40,000 in cash. On January 20, 1902, through Cody's efforts, a contract was entered into between Mary E. Dempsey and Florence L. E. Willmann for the exchange

of the tenement house for certain lots. The contract contained a clause reciting that it was "predicated upon the pro.

curement by the party of the first part of a loan of forty thousand ($40,000) dollars,

which loan is to be made simultaneously with the closing of title mentioned herein, but upon failure to procure said loan by either party from any source whatever, each of the parties will be released from any and every obligation, covenant or agreement thereunder, express or implied.” Cody agreed to waive his commission in the event of the failure of the contract

by reason of the loan not being secured. The contract was not consummated on February 3, 1902, as was provided by its

terms. March 20, 1902, the parties, who had continued to treat the original

*

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

contract as still in force, without consultation with or further agreement on the part of Cody, entered into an agreement modifying the original contract by providing for a loan of $35,000 instead of $40,000, and in some other incidental matters. The agreement, as modified, was carried out and the exchange

effected. Held, that Cody was entitled to recover his commissions. Where the attorney in fact for the owner of a parcel of real property in a city of

the first class employs a broker to effect an exchange of such real estate and executes and delivers to such broker, with the intention of authorizing him to negotiate the transfer, the following instrument: “They will takes 86 st subject to 1st and 2nd mortgages. We to take 26th ward lots subject to taxes and assessments not to exceed $6,500.00. William Dempsey," such instrument is a substantial compliance with section 640d of the Penal Code, which provides that in cities of the first and second class, “any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing,” etc., shall be guilty of a

misdemcanor. Assuming the statute in question to be constitutional, the failure of a broker,

employed to effect the sale or exchange of real estate in the city of New York, to procure the written authority required by the statute, will not, where the contract of sale or exchange has been executed, prevent the broker from recov.

ering his commissions. Semble, however, that the statute is unconstitutional. Where a contract, not unlawful in itself, has been executed, and the parties have

enjoyed the benefits of the contract, the mere fact that one of the parties has violated a penal statute in the approach to the contract will not prevent the court from enforcing payment.

APPEAL by the plaintiff, Nicholas V. Cody, from a judgment of the Supreme Court in favor of the defendant, Mary E. Dempsey, entered in the office of the clerk of the county of Queens on the 13th day of December, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

James W. Ridgway and John J. Smith, for the appellant.

Andrew J. Shipman, for the respondent. WOODWARD, J.:

This action is brought to recover $2,500 as coinmissions alleged to be due for services rendered by Thomas F. Cody, plaintiff's assignor, in effecting an exchange of property in the boroughs of Manhattan and Brooklyn. There is no dispute that Thomas F. Cody was employed by William Dempsey, attorney in fact for

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. Mary E. Dempsey, the owner of a tenement house in the borough of Manhattan, to effect a sale or exchange of this property, and it is not disputed that Thomas F. Cody did bring together the parties who subsequently entered into an agreement, which was carried out, by which the properties were exchanged. It is admitted that the compensation agreed upon was $2,500, but it is urged as a defense that the plaintiff's assignor was not authorized in writing, as required by section 6400 of the Penal Code, and that the contract entered into between the exchanging parties was not carried out. At the close of the whole evidence the learned court dismissed the complaint on motion of defendant, to which exception was taken, and this appeal brings up the question whether the plaintiff had established his cause of action, or had produced evidence which entitled him to go to the jury upon the issues.

It appears from the evidence that Mr. Dempsey, the attorney in fact of his wife, the owner of the tenement house “Marie,” met Thomas F. Cody and requested him to make an effort to sell the * Marie” or to exchange the same for other property in such a way “ as to realize $35,000 or $10,000 in ready money, with which certain incumbrances might be paid off. Cody was told that no transaction which did not result in producing this amount of money would be of any use, and he went to work with this object in view. As a result of his labors it is conceded that a contract was entered into between Mary E. Dempsey and Florence L. E. Willmann, acting throngh her attorney, Frederick Beltz, on the 20th of January, 1902. This contract provided the terms for the exchange of the properties, mentioning the incumbrances, etc., and it was stipulated that this “agreement is also predicated upon the procurement by the party of the first part of a loan of forty thousand ($10,000) dollars at not over 5% interest on the said Brooklyn lots, which loan the party of the second part will endeavor to procure or cause to be procured, if possible, but at the expense and cost of the party of the first part, said expenses and cost not to exceed two per cent of said loan and the necessary disbursements, and which loan is to be made simultaneously with the closing of title mentioned herein, but upon failure to procure said loan by either party from any source whatever each of the parties will be released from any and every

App. Diy,- VOL. LXXXVI. 22

[ocr errors]
« PreviousContinue »