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possession contains an admission of such payment, ordinarily a policy reads in consideration of the sum of blank dollars to them in hand paid at the office of the company; and such a statement in the body of the policy is as good as a similar statement contained in a separate paper which constitutes a receipt for the first premium. In this case, however, the corresponding clause in the policy is as follows: “In further consideration of the sum of $67.50, to be paid in advance.” So that the language here does not constitute an admission that the premium has been paid. In this state the acknowledgment in the policy of the actual payment of the first premium is only prima facie evidence of its payment. In the case of Sheldon v. Insurance Co., 26 N. Y. 460, it is said: "In any case the delivery and possession of a policy, containing a receipt for the premium, affords evidence of its payment, or of a waiver of its prepayment, but is not conclusive." This shows that it is not the mere possession of a policy, but the possession of a policy containing the receipt for the premium, upon which the courts rely for the presumption. Plainly, therefore, there is a substantial distinction between the phrase in the old policy forms and the phrase in the policy in the case at bar; and the mere fact that the policy in the new form is in the hands of the plaintiff is no evidence that the first premium has been paid. But, even if the possession of the policy in this action did raise the presumption that the first premium had been paid, the presumption has been met and overcome by conclusive evidence. There is no necessity for resort to presumptions to ascertain the true nature of the transaction concerning the issuance of the policy in this case. The testimony of the agent shows that the policy never had any inception as an active policy of insurance; that it never was delivered with the expectation that it was in operation, or would be so, or would be effectual as a valid operative policy, until the first premium had been paid.

It is to be said, further, that there is no evidence tending to show that the payment of the first premium had ever been waived. The reliance of the plaintiff is solely upon the fact that the policy was delivered to Clifford, and from that alone argues that the payment of the first premium was waived; but, as we have seen, the circumstances attendant upon the delivery show plainly that the policy was not in force or intended so to be until the first premium was paid. If, under these circumstances, the case had been submitted to the jury, and a verdict had been found in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside. There have been decisions in this state to the effect that the delivery of a policy of insurance without receiving payment of the premium is a waiver of the possession therein, but, as we have already seen, that class of cases can have no application to this case. The policy was never delivered with any expectation that it would become effectual, and therefore never had any legal inception. The judgment and order denying the motion for a new trial should be affirmed, with costs.

All concur.

HATFIELD V. MALCOLM et al.

(Supreme Court, General Term, Second Department. July 28, 1893.) 1. MORTGAGE FORECLOSURE-PARTIES.

A plaintiff in a suit to foreclose a mortgage need not join as a party defendant a corporation to which the laud was transferred by an unrecorded deed, of which company the mortgagor was manager, and wbich

knew of the mortgage proceedings, and took no action in relation thereto. 2. SERVICE BY PUBLICATION-WHEN PROPER.

The sheriff was unable to find defendant at his home, and was told there in June that he was out of the state. In July plaintiff was in. formed that defendant could probably be found at a certain place, and plaintiff unsuccessfully tried to find him there, and defendant's relatives could not tell where he could be found. Held, that an order for service

by publication was justified. 3. SAME-FORM OF ORDER.

An order for service by publication need not contain an option to plain

tiff to make personal service outside of the state. 4. REFEREE'S OATH-PRESUMPTIONS.

In the absence of evidence to the contrary, it will be presumed that a referee took the official oath.

Appeal from special terın, Westchester county.

Action by Adele M. A. Hatfield against James W. Malcolm and another to foreclose a mortgage. Judgment of foreclosure. From an order denying a motion of the New Amsterdam Real Estate Association to vacate the judgment, said association appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Jeroloman & Arrowsmith, (John H. Clapp, of counsel,) for appellants.

H. T. Dykman, for respondent.

BARNARD, P. J. The plaintiff, on the 15th of March, 1892, conveyed certain property in Westchester county to the defendant James W. Malcolm. Malcolm gave back a mortgage for a large part of the purchase money, payable by installments. The mort. gage provided that, upon a default in the payment of any installment, the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 15th of June, 1892, in the payment of $6,000, then due, and the plaintiff foreclosed, and sold the property, and bid it in for her debt. Soon after the sale by the plaintiff to Malcolm, he sold the property to the New Amsterdam Real Estate Association. This deed was not recorded when the foreclosure was instituted. Malcolm was the manager for the real-estate company, and, pending the foreclosure, this company was fully informed of the proceedings, and took no action in respect to being made a party defendant, but continued to negotiate for delay, and the objection now made, that the company should have been made a party defendant, is without force. No deed was on record. Malcolm was its trustee, and a knowledge that he intended to convey to the company would not have justified

the plaintiff in making the company a party until the deed was given.

The order for the publication was based upon sufficient evidence, and was in due form. The sheriff could not find either Malcolm or his wife in Westchester county. He had lived with his father at Mt. Pleasant. Inquiry therein resulted in information that young Mr. Malcolm had gone to Tennessee. This was in June, 1892. In July, 1892, one of Malcolm's brothers informed the plaintiff's agents that his brother was at the races at Monmouth Park on the 4th of July, 1893, and he could be found, probably, at Munden's Cafe, Sixth avenue and Thirtieth street. He could not be found there. Neither his father nor his brother could give information where he could be found. The papers show an extreme effort to serve him with the papers in the state, and fairly justify an inference that he was evading service by absence from the state, or by concealment within it. The order need not contain the option that a personal service out of the state be made personally. The case of Ritten v. Griffith, 16 Hun, 454, does not so hold. There a personal service out of the state was made without an order of publication, and such a service was held void. The affidavit of publication in the Westchester County Reporter was sufficient. It had a summons annexed to it, which was proved to have been published seven successive weeks, from July, 15, 1892, to August, 26, 1892, both inclusive. The affidavit of publication in the Eastern State Journal is to the effect that an annexed summons had been published seven successive times, beginning July, 16, 1892. The order of reference was not jurisdictive, and is in due form. It directed the referee to examine the plaintiff as to the truth of the allegations of the complaint. The complaint averred that there were no payments, and the plaintiff was examined, and so testified before the referee. As to the fact whether the referee took the official oath the papers are silent. The presumption is in favor of the performance of official duty. The order should therefore be affirmed, with costs and disbursements. All concur.

BERAU v. O'CONNELL.

(Supreme Court, General Term, Second Department. July 28, 1893.) PARTNERSHIP-ACCOUNTING BETWEEN PARTNERS-EVIDENCE.

In an action by a partner against his copartner in a city contract, to recover money alleged to have been given to defendant for use in the interest of the business, and by him appropriated, plaintiff testified that defendant represented that certain persons (without naming them) were to have 4 per cent of the receipts on the contract, and that the package of money was delivered by plaintiff, in the presence of defendant, to W., to be given to the person presenting a card from defendant. W. admitted receiving the money from plaintiff, but did not remember to whom he gave it. Defendant denied the statements by plaintiff. Held that, de. fendant having authority to obtain the money himself from W., his fail. ure to disclose who actually received it entitled plaintiff to recover. Appeal from special term, Kings county.

Action by Henry Berau against Daniel O'Connell for an accounting of partnership property alleged to have been misappropriated. From a judgment entered on findings for defendant, plaintiff appeals. Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Hector M. Hitchings, for appellant.
Anthony Barrett, for respondent.

BARNARD, P. J. The parties to the action entered into copartnership in December, 1886, in a contract given by the city of Brooklyn to Berau for the removal of garbage from the streets of the city of Brooklyn. The name of the firm was Henry Berau. The contract was subsequently enlarged, and the partners commenced their employment. The usage of the parties was to settle monthly. The business continued until February 12, 1892, when the copartners had a full settlement. The complaint is framed upon a general allegation, made by the plaintiff, that the defendant took from the partnership funds large sums of money with which to protect the partnership interests, and that he did not so use the money, but that the money was taken by defendant under a false allegation that the sums were needed, but that no payınents were ever made, and the money was retained by the defendant for his own use. The defendant denied the allegations of the complaint. Upon the trial the general allegations became, by the evidence, specific. The plaintiff testified that the defendant, at the commencement of the partnership, told him that 4 per cent. of the total amount of the receipts for the city work under the contract must be paid to certain unnamed persons, described as "them parties in Willoughby street." The plaintiff asked who they were, and the defendant told him he would learn later. Four or five months after the contract commenced, the defendant told the plaintiff that the 4 per cent. amounted to $3,000, and “they want some money.” Thereupon, the plaintiff testifies, he got $1,500, and gave it to the defendant; that defendant put his $1,500 with it, and gave the bundle to Mr. Wernberg, in his (plaintiff's) presence. No direction was given as to its de posit, beyond this: that it was to be given to a person who should present a card with “H. B." on it, written by the defendant. This transaction stands alone, and has a vital—even controlling-effect upon the other payments claimed to have been subsequently made. The defendant denies the statement entirely, in a sentence: “That is not true. That is false.” Mr. Wernberg is called, and he states what the plaintiff left the package of $3,000, with a card marked "H. B.;" that he has no recollection who presented the duplicate card, or to whom he paid the moneys; that he believes the defendant was not present. A careful reading of the testimony of Mr. Wernberg leads to the conclusion that the plaintiff's narrative gave the true account of the $3,000. There was a package of $3,000. There were two cards printed “H. B.” The package contained one, and the other was to be given to same as a voucher by which Mr. Wern. berg should be authorized to give the money. It is an easy in. ference that the money was returned to the defendant. He had the authority to get it, and gave it to some one, or used it himself. He is responsible until he shows a payment to some other person. If 4 per cent. was to be paid to some one, its payment would absolve the defendant. He has the keys of knowledge, as I read the evidence of plaintiff and Wernberg. The evidence between the parties as to the subsequent payment is equally contradictory. The plaintiff says that 4 per cent. was paid yearly to defendant under the same pretense; that when an additional contract was obtained there was $916 due and payable each month; and that one-half of this, $458, was paid in cash by the plaintiff to the defendant. The plaintiff is supported by his son. The son states that on two occasions he paid defendant, for his father, $458; that on one or several occasions he saw his father pay over money to defendant; that the defendant, on some occasions, urged him to tell his father that "those people want the money;" and that he went to the bank to draw money on his father's checks. These checks were rejected, although the $458 cash paid was obtained by the checks. Under this evidence, if the $3,000 was paid Wernberg, all others were. That payment established the 4 per cent. basis, and, with the evi. dence of the plaintiff and his son as to the remaining payments, they should be believed, as against the defendant, who contradicts, not only these witnesses, but Mr. Wernberg, as well. No money was to be or was paid to gentlemen in Willoughby street. That was only an excuse to get this considerable sum of money from his partner. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.

SESSIONS et al. v. ELWELL, (two cases.) (Supreme Court, General Term, Second Department. July 28, 1893.) SPECIFIC PERFORMANCE-TRANSFER OF STOCK.

Defendant agreed to deliver to plaintiff stock in a corporation to be organized, pursuant to an agreement between him and the owner of a patent, for the operation of the invention, by which agreement defendant was to organize the company, and was to receive certain stock for so doing, provided he complied with certain conditions as to the organization, which he failed to do, by reason of his inability to obtain capital. Held, that defendant's agreement with plaintiffs could not be enforced as to stock in another company, organized by another person by agreement with the owner of the patent after defendant's failure, in which company defendant, by a new arrangement, acquired a certain interest. Appeal from special term, Kings county.

Actions by John Sessions and Archibald L. Sessions against John D. Elwell. Judgment for defendant. Plaintiffs appeal. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Archibald L. Sessions, for appellants.
Eustace Conway, for respondent.

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