Then

charged liens or. the abstract of title and search. He said that was so. I stated to him that the city had absolutely no need of that property, and in my judgment it was not worth to exceed half the contract price. That I was fully convinced from what I knew about the matter that the whole deal was corrupt, and I said so far as I was concerned that I deemed it my duty not to approve any abstract of title and search unless it complied with the conditions of the contract. That it was not any good for me to examine the search with his statement that undischarged liens appeared thereon. I said there might be other reasons why I would not approve of the abstract of title and search, and I would not approve it with those undischarged mortgages and taxes on it; I would not approve it unless it complied with the terms and conditions of the contract."

Among the liens appearing upon said search was a mortgage held by the Cortland Savings Bank. After the refusal of the officials of the defendant to carry out said contract, an action to foreclose said mortgage was commenced, terminating in a judgment and sale, at which the mortgagee bid off the said premises, obtaining a referee's deed, which was recorded April 21, 1904. On the 24th of June thereafter the said plaintiffs tendered to all said officials of the defendant a deed of conveyance in proper form, executed by said savings bank to said city, and accompanied such tender with a deed of the plaintiffs, containing full covenants of warranty, also naming said city as grantee, together with a search duly certified by the clerk of said county, disclosing said premises free and clear of lien or incumbrance; but said officials again refused to pay said purchase price or perform said contract. A similar tender was made later, and also upon the trial of the action, but with a like refusal.

The trial court finds specifically on each of these endeavors of the plaintiffs to induce the defendant to perform its agreement, and we will quote only from the one pertaining to the last attempt:

"That upon the trial of this action plaintiffs duly tendered to said defendant a good and perfect title of said premises, and tendered said two deeds, said Exhibits 13 and 14, and also said search, duly certified by the clerk of Onondaga county, which shows said premises free and clear from all liens and incumbrances, and being Exhibit 2 in evidence, and demanded the contract purchase price, all of which were refused by said defendant; and its corporation counsel then and there unreasonably refused to approve of said title or approve of said search, and that the said title so tendered by plaintiffs to defendant upon the trial was a good and perfect title, free and clear from all liens, and in all things conformed with the terms and conditions of said contract of purchase and with the conditions of the said resolution of said common council directing the purchase of the same."

On the 20th of June, 1904, the common council of the defendant, in response to a communication from the corporation counsel, passed a resolution rescinding the preceding resolution authorizing said contract, and declaring the same to be inoperative and void. A history of the transaction from its inception denotes that there was much opposition on the part of some of the officials of the defendant to the performance of this agreement, and that opposition culminated in the action just referred to. The conclusion also seems reasonably well founded that the corporation counsel participated in this opposition, and his reason for declining to pass upon the search or assent to the sufficiency of the title was apparently due more to this sentiment than to any apprehension that the city would not become the unqualified owner of the premises free of lien or incumbrance.

and 132 New York State Reporter

We think the certificate of approval of the corporation counsel was not an essential prerequisite to the enforcement of the agreement. The object of the precautionary clause that he inspect and pass upon the search was to insure the city an indefeasible title to the premises cleared from incumbrance. If he declined to act, and the city is unquestionably assured of the ownership of the premises without lien, as stipulated in the agreement, the purpose to be attained by his certificate has been accomplished. As was said in Amer. & Eng. Ency. of Law, vol. 26, p. 689 (2d Ed.):

"Statutory prescriptions in regard to the time, form, and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business."

As suggested in the opinion of the learned trial justice, the principle is akin to that which enables a contractor to recover on a building contract without the certificate of the architect required in the agreement, providing a reasonable excuse for the omission of the certificate and substantial performance are shown.

The plaintiffs presented a clean abstract of title upon the trial and during the pendency of the action, and were therefore entitled to judgment decreeing specific performance. Baldwin v. Slater, 8 Paige, 473; Nicklas v. Keller, 9 App. Div. 216, 41 N. Y. Supp. 172; Jenkins v. Fahey, 73 N. Y. 355; Onderdonk v. Ackerman, 62 How. Prac. 318-321. As was said in the case first cited, at page 473:

"It is a general rule that a specific performance of an agreement may be decreed if the complainant is in a situation to perform on his part, and make a good title when the cause comes before a court for a decree."

The objection urged that the plaintiffs' lot is not of the full width described in the contract and deed has been fully met in the opinion of the court below, and we deem any further discussion of that question unnecessary.

The city may not now "need" these premises, as contended by the corporation counsel in declining to pass upon the abstract of title. Its common council by formal resolution authorized the execution of the contract of purchase. The fairness of the transaction has been vindicated by a judgment from which no appeal has been taken. The contract has been duly executed on behalf of the city. Upon the present trial, after careful consideration, its validity and integrity are unimpeached, and the price which the city is to pay for the land is again determined to be reasonable, and not in excess of its value. The city should not, therefore, be excused from performance for any trivial

reason.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur; KRUSE, J., in result

(112 App. Div. 536)

BRADLEY et al. Y. STANDARD LIFE & ACCIDENT INS. CO. OF DETROIT, MICH.

(Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) INSURANCE-EXISTENCE of Contract.

Plaintiff, insured in an employer's liability policy covering certain work, wrote the general agent of insurer, stating that plaintiff understood that the policy covered certain other work which plaintiff had undertaken, to which the agent replied that the policy did not cover the work, that the rate was a specified sum, but that he would "bind the risk" until plaintiff decided what he desired to do, and that plaintiff should communicate with the agent at a certain time on the next day. The agent's letter was not answered, and after the time fixed by the agent for consultation an employé was injured. Held, that there was no contract of insurance covering the employer's liability for the injury.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, § 196.]

Appeal from Trial Term, Oswego County.

Action by Walter Bradley and others against the Standard Life & Accident Insurance Company of Detroit, Mich. From a judgment (93 N. Y. Supp. 245) in favor of plaintiffs, defendant appeals. Reversed.

The action was commenced on the 18th day of November, 1901, to recover the amount which the plaintiffs paid in settlement of a claim made between them and the representatives of one of their employés, who, as is alleged, was killed solely through their negligence; the contention being that, by an alleged contract of insurance previously entered into between them and the defendant, it agreed to indemnify and save harmless the plaintiffs from all such claims and liability in the premises. The defendant denies that any such contract was made or entered into on its part, and that issue presents practically the only question involved upon this appeal.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.

Theodore E. Hancock, for appellant.

D. P. Morehouse, for respondents.

MCLENNAN, P. J. The circumstances and correspondence which it is claimed constituted a contract of insurance between the parties to this action, stated most favorably to the plaintiffs, are as follows: The defendant at all the times mentioned was engaged in the business of issuing empolyers' liability insurance by means of a certain form of policy. Previous to the time involved in this litigation, the defendant had issued at least two of such policies to the plaintiffs, one commencing April 21, 1897, and ending April 21, 1898, and purporting to insure them against accident to their employés while engaged in canal excavation, earth, and rock, on the Oswego Canal at Oswego, N. Y., and the second policy, commencing April 21, 1898, and ending April 21, 1899, insuring them against accident to their employés while engaged in mason work on the Oswego Canal, rebuilding lock No. 18, section 2, and laying slope and vertical wall. The last of such policies, at least, was the usual form of policy which the defendant company issued during the year 1898, and was in force at the time when the alleged contract in suit is claimed to have been made. At all the times mentioned one A. T. Armstrong, who had his office in Syracuse, N. Y.,

and 132 New York State Reporter

was the general agent of the company. While the second policy referred to was in force, the plaintiffs entered into a contract to rebuild and enlarge a raceway at Fulton, N. Y., in the county of Oswego, for a manufacturing concern known as the W. G. Gage & Co. Such work was in no manner connected with the Oswego Canal or with the work referred to in either of the insurance policies previously issued to the plaintiffs. On the 16th day of July, 1898, while the last policy above referred to, issued by the defendant to the plaintiffs, was in force, the plaintiffs wrote to the defendant's general agent as follows: "Oswego, N. Y. July 16, 1898. "Mr. A. T. Armstrong, 306 Granger Block, Syracuse, N. Y.-Dear Sir: We have commenced work on a job of rock excavation and masonry at Fulton, N. Y. As we understand it, policy No. 8.750 held by us covers this work; also, what is the additional cost to cover public?

"Yours truly,

Walter Bradley & Co."

Three days later, and on July 19th, defendant's general agent replied to plaintiffs as follows:

"Syracuse, N. Y., July 19, 98. "Walter Bradley & Co., Oswego, N. Y.-Dear Sir: Your esteemed favor of the 16th received, and in reply would say that your present policy 8,750 will not cover work done in Fulton, N. Y., as the policy was taken out for mason work done on the Oswego Canal. As near as I can figure the work you now have on hand at Fulton, the rate will be $3 per $100 on the excavating and blasting, and $1.98 on the mason work; $1.50 per $100 on the outside public. Wish you would call me up by 'phone to-morrow at 12 o'clock, if possible, at my expense; I can then explain the matter more satisfactorily to you. I will bind the risk now until you have decided just what you want to do. If you so desire, I can come to Fulton or Oswego to-morrow afternoon. Trusting that we may arrange the matter satisfactory to you, I remain,

"Yours, very respectfully,

A. T. Armstrong."

Such letter was received by one of the plaintiffs at the company's office in Oswego on the evening of July 20th. No answer was made to the letter; its receipt was not acknowledged, but it was filed away with the other business papers of the plaintiffs, and the member of plaintiffs' firm who received it states, in substance, that he so filed it away understanding that the firm was insured. The other two members of the firm, including the one who wrote the letter of July 16th to defendant's agent, were absent from plaintiffs' place of business when the letter in question was received. On July 26th, and before Mr. Armstrong or the defendant, which he represented, had received any answer or response to his letter of July 19th, one Fred Guy Fitch, an employé of the plaintiffs, working in the excavation in enlarging the raceway at Fulton, N. Y., for W. G. Gage & Co., was injured, we will assume through the negligence of the plaintiffs, and in such manner that he died. On the following day the plaintiffs mailed a letter to Armstrong, in which was inclosed a detailed statement of the accident, and a claim that the defendant was liable to the plaintiffs on account thereof. On the same day the plaintiffs mailed a letter to the defendant at its home office in Detroit, in which they stated:

"Inclosed you will find notice of accident on our work at Fulton, N. Y., which resulted in the death of Fred Fitch of that place. Have also sent notice to Mr. A. T. Armstrong, your agent at Syracuse, N. Y."

Such letters were received by Armstrong and by the defendant company on July 28th. On August 1st one of the plaintiffs called upon Armstrong, and was informed that the matter had passed out of his (Armstrong's) jurisdiction; that it had been referred to the company. Aside from that conversation, the plaintiffs received no communication from the defendants until August 12th. On August 12th one E. E. Niess, an agent of the defendant, went to Fulton, inspected the plant, works, and machinery of the plaintiffs, and received from the plaintiffs a brief account of the accident, and after such interview informed the plaintiffs that the company which he represented was not liable for the accident. Thereafter, and on August 15th, defendant's agent Niess returned the detailed notice of loss which the plaintiffs had mailed on July 27th, and stated that the defendant was not liable, "as this company has no policy or contract of insurance on the work where this accident happened." Subsequently an administrator was duly appointed of the Fitch estate (the employé who was killed), and commenced an action against the plaintiffs to recover for the damages caused by his death. The plaintiffs notified the defendant of the commencement of such action, and asked that it defend the same. Subsequently the plaintiffs settled the action brought by the representatives of Fitch by paying the sum of $1,500. Thereupon this action was brought to recover said $1,500 and $185.75, costs incurred therein, upon the theory that the defendant had made a contract of insurance by which it became obligated to indemnify and save the plaintiffs harmless against any loss or damage occasioned by the death of their employé Fitch.

It seems to me that a bare statement of the facts is sufficient to show that no contract of insurance covering the accident in question ever existed between the parties. Clearly the work upon which plaintiffs' employé was engaged at the time when he received the injury which resulted in his death was not covered by either of the former policies issued by the defendant. The letter written by the plaintiffs under date of July 16th indicates that they understood such work was covered by the last policy issued to them; that it would be only necessary to determine the additional premium which should be paid. But the letter which they received from defendant's agent Armstrong clearly and explicitly states that the former policy issued to them did not cover the work being done by them in Fulton, and where the accident occurred. He states what the rate will be for insurance upon such work, and asks that they call him up the following day on the telephone, and adds: "I can then explain the matter more satisfactorily to you." He then adds:

"I will bind the risk now until you have decided just what you want to do. If you so desire, I can come to Fulton or Oswego to-morrow afternoon. Trusting that we may arrange the matter satisfactory to you, I remain," etc.

These two letters cannot by any possibility be held to constitute a contract of insurance. "Whether a contract of insurance has been made or not depends upon the question of whether the respective parties have come to an understanding upon all the elements of the contract; the parties thereto; the subject-matter of insurance; the amount for which it is to be insured; the limits of the risk, including