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after the date hereof. Thirdly. That they will not sell or assign this contract, or cut or suffer to be cut for sale any timber from said land, without the consent or approbation of the said parties of the first part or their attorney first had and obtained in writing, nor permit any waste, actual or permissive, upon said premises: provided, always, and these presents are upon the express condition, that in case of the default of said parties of the second part, or their heirs or assigns, in the performance of any or either of the covenants or agreements on their part to be performed or kept, it shall and may be optional with the said parties of the first part to abide by this contract or consider it absolutely void; and if in such case the said parties shall choose to consider this contract absolutely void they may re-enter and dispose of the premises, and in case of refusal to yield up possession have the right to regard the said parties as their tenants holding over without permission after the expiration of their term. And, furthermore, the said parties of the first part shall have the right at any time to recover the interest that may be due upon this contract for the period of actual possession as rent and for the use and occupation of the premises."
King and Trushaw took possession immediately under the contract, and remained in possession until the fire, which occurred on January 9, 1892. Directly after making the contract, plaintiff Smallman went to Mr. Skinner, defendant's agent, told him about the transaction, and asked him to make the necessary indorsement on the policy, and he thereupon made the following indorsement: "It is hereby understood that the title of this property is now vested in P. King and N. Trushaw, and loss, if any, is payable to Ladd & Smallman, as interest may appear."
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Kellas & Munsill, (John P. Kellas, of counsel,) for appellants.
PUTNAM, J. It is not claimed that the policy of insurance on which this action was brought, when issued, was invalid. Plaintiffs were the owners of the property insured, and received the policy from the duly-authorized agent of defendant. But it is urged that the policy became void in consequence of the contract executed, after the issuing thereof to King & Trushaw, which transferred to the latter the equitable title to the mill, and by the alleged erroneous indorsement on said policy that the title was vested in them. Notwithstanding the contract, plaintiffs remained the legal owners of the property, and could insure it;, probably for the whole value, but certainly to the extent of their interest in it. Insurance Co. v. Updegraff, 21 Pa. St. 513; Tallman v. Insurance Co., 4 Abb. Dec. 345; Wood v. Insurance Co., 46 N. Y. 421. Plaintiffs remaining the legal owners of the property, and with an insurable interest therein, their valid policy did not become invalid in consequence of the contract if they correctly represented to defend. ant's agent the facts as to such transfer. There was evidence on the trial from which the jury could have found that defendant's agent was notified that the sale to King & Trushaw was by contract, and hence, a nonsuit having been granted, we must now assume that the agent was truly informed as to the said contract. Under such circumstances, we understand it is well settled that the mistake of the agent in making the indorsement will not avoid the policy. Mowry v. Insurance Co., 64 Hun, 144, 18 N. Y. Supp.
834; Van Schoick v. Insurance Co., 68 N. Y. 434; Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. Rep. 254.
We do not regard the cases cited by respondent (Quinlan v. Insurance Co., 133 N. Y. 356-364, 31 N. E. Rep. 31; Allen v. Insurance Co., 123 N. Y. 6, 25 N. E. Rep. 309) parallel to the cases under consideration. These are not cases where a valid policy was issued to the insured, and by a mistake of the agent of the insurers the proper indorsement of a transfer was not placed upon the policy of insurance, the agent being duly and properly notified of such transfer. The indorsement made was as follows:
"Ind't made on policy No. 9,932, Aetna Insurance Co., June 30, 1891:
"It is hereby understood that the title of this property is now vested in P. King and N. Trushaw, and loss, if any, is payable to Ladd & Smallman, as interest may appear.
S. B. Skinner, Agent." It has been decided that the company by the words "as interest may appear" insured the plaintiffs for any insurable interest which they might have in the insured property, and waived the condi. tion requiring a specific statement of such interest in the policy. De Wolf v. Insurance Co., 16 Hun, 116; Burke v. Insurance Co., (Sup.) 12 N. Y. Supp. 254.
We have assumed that in making the indorsement above set out the agent incorrectly stated that the title to said insured property was in King & Trushaw. The latter, however, under the contract, were the equitable owners of the property, and there are authorities holding that such vendees who have taken possession under a contract have the title, and may insure as the owners. Pelton v. Insurance Co., 13 Hun, 23, 77 N. Y. 605. We therefore conclude that the policy was not avoided in consequence of the contract to King & Trushaw.
The court below granted the nonsuit on the ground that the insured property, being a manufacturing establishment, ceased to be operated as such for at least 10 days at some time prior to the fire, and hence, under the conditions in the policy, it became void. The conditions referred to provide that, if the subject insured be a manufacturing establishment, and ceases to be operated for more than 10 consecutive days, or if the building therein described, whether intended for occupancy by the owner or a tenant, be and become vacant or unoccupied, and so remain for 10 days, the policy shall be void. We think the position of appellants correct, that ordinarily the term "occupy," as applied to such a sawmill, must be deemed synonymous with "operate." It is held “that to constitute occupancy of a building used for manufacturing purposes there must be some practical use or employment of the property." Halpin v. Insurance Co., 118 N. Y. 174, 23 N. E. Rep. 482. A condition of the kind above set out is to be construed in view of the circumstances and character of the property insured and in view of the contingency as to its use within the reasonable contemplation of the parties. Caraher v. Insurance Co., 63 Hun, 93, 17 N. Y. Supp. 858. The property in. sured was a sawmill run by water power. It was destroyed by
fire on January 9, 1892. The mill was kept running up to December 9th, when King, the sawyer, was taken ill, and work was suspended until three days before the fire, when the witness Trushaw sawed two logs. He testified he was intending to go to the mill the following Monday to saw the logs there. When King became ill he had arranged to saw out a bill of lumber the next day. There was quite a quantity of logs at the mill to be sa wed, and arrangements had been made to have others drawn, and logs were drawn there during King's illness, and up to the time of the fire, and lumber taken away. He stopped work on account of the illness. If an insurance policy on a sawmill run by water power is vitiated by a temporary suspension of the operation of the mill in consequence of the illness of the sawyer, absence of logs, low water, or any circumstances which must necessarily cause such suspension from time to time, such a policy would have but little value. In Whitney y. Insurance Co., 72 N. Y. 117, 9 Hun, 37, a case of insurance upon a sawmill, at the time of the fire no sawing had been done for 16 or 18 days, but there were logs in the yard, which the plaintiff intended to saw; lumber piled in the yard and in the mill, from which sales were made from time to time before the fire. It will be seen that the facts were similar to those in this case. In that case it is said:
“Delays and interruptions incident to the business of conducting a sawmill, although involving a temporary discontinuance of the active use of the mill for sawing purposes, would not, we think, make the mill ‘vacant' and 'unoccupied' within the meaning of the policy. Take the case of the insurance of a church building or schoolhouse or cider mill. Would the fact that the church was closed for six days consecutively each week be a violation of the condition in question, or would the schoolhouse in vacation time, or the cider Inill when no apples were to be had, be without the protection of the policy? These illustrations serve to show that the condition against vacancy and nonoccupation is to be construed and applied in view of the subject-matter of the contract, and of the ordinary incidents attending the use of the insurer property."
In Poss v. Assurance Co., 7 Lea, 704, it was held that a clause similar to the one in question in an insurance policy is not avoided by a temporary cessation of work caused by an epidemic. In Albion Lead Works v. Williamsburgh City Fire Ins. Co., 2 Fed. Rep. 480, it is determined that such a clause is not violated by a temporary suspension of work at the mill. We think the above-cited cases place the proper construction on such a provision in a policy. The suspension of work that would avoid a policy in such a case must be either permanent or something more than a suspension of work from some temporary cause. The distinction between this case and such cases as Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482, is apparent. In the latter case the insured property had been occupied as a morocco factory, but the tenant had left, and the building was locked up and in the hands of the agent to rent, and it remained in that position for months. It had ceased to be operated at all until another tenant could be found. The suspension of work in the case cited was very different from the temporary suspension in the case under consideration, which
was only continued during the illness of the sawyer. We conclude that the policy of insurance in question was not rendered void by the brief suspension of the operations of the mill in consequence of King's illness, and that the court erred in taking the case from the jury, and in granting the motion for a nonsuit; and hence, without considering the other questions raised in the case, the judgment should be reversed, and a new trial granted, costs to abide the event. All concur.
(70 Hun, 193.)
FREEDMAN V. CHAMBERLAIN. (Supreme Court, General Term, First Department. June 30, 1893.) CLUB DUE8-INSOLVENCY-COLLECTION BY RECEIVER.
A member of an incorporated club is liable for semiannual dues, pay. able in advance, though, after they are due, but before payment, the club becomes insolvent, and goes into the hands of a receiver. Controversy between Andrew Freedman, receiver of the Manhattan Athletic Club, as plaintiff, and J. Chester Chamberlain, as defendant, submitted without action on an agreed statement of facts. This is a test case to determine whether members of the Manhattan Athletic Club are liable in law for their semiannual dues, payable in advance, January 1, 1893, the club hav. ing suspended in February, 1893, because of insolvency, and gone into the hands of a receiver. The Manhattan Athletic Club was organized in 1878, under the authority of chapter 267 of the Laws of 1875, entitled "An act for the incorporation of societies or clubs for certain lawful purposes.”. Judgment for plaintiff.
Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
Stern & Rushmore, (C. E. Rushmore, of counsel,) for plaintiff.
Kenneson, Crain & Alling, (A. B. Havens and Asa A. Alling, of counsel) for defendant.
VAN BRUNT, P. J. Judgment should be rendered in favor of the plaintiff for $25; but, as costs on the submission of a controversy are always in the discretion of the court, I do not think costs should be directed in favor of the defendant. All concur.
(70 Hun, 453.) RACINE V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Third Department. July 8, 1893.) NEGLIGENCE-EVIDENCE-DEFECTIVE MACHINERY.
In an action against a railroad company to recover for the death of a fireman by the explosion of his engine, it appeared that, about a week before the accident, the water in the boiler had been lowered so that the crown sheet was not covered. The engine was afterwards examined and tested to the maximum pressure of about 145 pounds, but no defect was discovered, and it was continued in use. The explosion occurred while the engine was running without a train, under a pressure of 110 pounds. Held insufficient to go to the jury on the question of defendant's negligence.
Appeal from circuit court, St. Lawrence county.
Action by Carrie A. Racine, as administratrix of Samuel L. Racine, deceased, against the New York Central & Hudson River Railroad Company. From a judgment entered on an order dismissing the complaint, with costs, plaintiff appeals. Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Chamberlain & Caldwell, (Worth Chamberlain, of counsel) for appellant.
Mullin, Griffin & Walker, (D. G. Griffin, of counsel,) for respondent.
MAYHAM, P. J. The plaintiff's intestate was killed while in the employ of the defendant, by the explosion of a boiler on one of the defendant's locomotive engines; and the only question raised on this appeal is whether the trial judge should have submitted to the jury as to whether or not the defendant was negligent in furnishing an unsafe place for the plaintiff's intestate to perform his work. The injury occurred by an explosion of the crown sheet of the boiler, and there was some evidence that about one week before the explosion, which caused the injury, the water in the boiler had been lowered so that the crown sheet was not covered, and that the engineer discovered that the plate appeared white, and the atten. tion of the master mechanic was called to it, and after some examination of the boiler by experienced engineers, and by a boiler maker, who discovered no evidence of injury or weakness to the boiler, she was kept at work. The evidence shows that the maximum capacity of the boiler to resist the pressure of steam was between 140 and 145 pounds before she would exhaust steam, or “pop off,” as the witness called it, automatically, by forcing open the safety valve on the engine, and the evidence shows that, frequently after the alleged burning of the crown plate, she carried her full amount of steam, and popped off regularly when the maximum pressure was reached. The evidence also disclosed that she was used from the time of the supposed burning of the plate to the time of the explosion in hauling freight trains over the road, and showed no signs of weakness or leaking, and that on the day of the accident she had hauled a freight train from Watertown to Sanford's Corners, where she was transferred to a passenger train, which she hauled to Philadelphia, whence she started back without a train, to be again attached to the freight which she had left, and while carrying but 110 pounds of steam, and running at the * rate of 10 miles an hour, she exploded, and caused the injury complained of.
We think that, upon these facts, the plaintiff failed to establish affirmatively any negligence on the part of the defendant in not