FIFTH DEPARTMENT, DECEMBER TERM, 1889. in July) why the plaintiff should not recover for those four weeks as well as for the two immediately succeeding the time of the injury. The judgment should be affirmed. BARKER, P. J., and DWIGHT, J., concurred. Judgment affirmed. JOHN STEARNS AND CHARLES C. BOYD, RESPONDENTS, v. JAMES MOGINTY, APPELLANT. Measure of damages resulting to the owner of ewe lambs, by reason of their pregnancy caused by the trespass of buck lambs into their pasture. In an action, brought to recover damages arising from the escape of three buck lambs from the premises of the defendant onto the land of the plaintiffs, by which the ewe lambs of the plaintiffs were gotten with lambs out of season, so that the lambs were dropped during such cold weather that twenty-nine of them were frozen to death, the measure of damages is not the value of the lambs perishing by reason of being born in inclement weather, but is the difference between the plaintiffs' ewes for breeding and other purposes, as they were at the time of the trespass by the buck lambs and as they were thereafter. APPEAL by the defendant from a judgment of the County Court of the county of Allegany, entered in the office of the clerk of Allegany county on the 3d day of April, 1888, which affirmed a judgment of a justice of the peace, in favor of the plaintiffs, for the sum of twenty-three dollars and thirty-seven cents damages and five dollars costs. Dolson & Orcutt, for the appellant. L. C. Van Fleet, for the respondents. MACOMBER, J.: This action was brought to recover damages alleged to have been sustained by the plaintiffs by reason of the escape of three buck lambs from the premises of the defendant to those of the plaintiffs, by reason whereof such buck lambs got thirty-two ewes, belonging to the plaintiffs, with lamb out of season, so that their lambs were dropped during such cold winter weather as that twenty-nine thereof were frozen to death. FIFTH DEPARTMENT, DECEMBER TERM, 1889. The plaintiffs did not own the ewes in common, but held them in common for the purposes of raising lambs. One of the plaintiffs owned the land upon which the ewes were pastured, while the other had no interest therein. Their common interest was in maintaining the sheep upon the lands of Stearns and procuring an increase thereof in which they should share in certain proportions. No question was raised below, that the action could not be maintained jointly by these parties. true one. The only matter in controversy seems to be the measure of damages which is applicable to the facts of the case. It was assumed by counsel in the County Court, as well as in this court, that the measure of damages adopted by the justice of the peace, was the value of the lambs so perishing by reason of being born in very inclement weather; and the learned county judge has written an elaborate opinion sustaining the contention that such rule was the An inspection of the record, however, shows that this question of the measure of damages has no proper place in this appeal. The evidence leads to the conclusion that the escape of the defendant's rams would quite naturally lead to the result that actually happened, namely, the pregnancy of the ewes and the dropping of this increase out of season, in the latter part of February and the fore part or the middle of March. The cost of raising lambs until they become marketable was also shown. The proportion of lambs that would be lost when born in proper season was likewise shown. All facts relating to the measure of damages in such cases, seem to have been gone into on the trial, save only the likelihood of injury to the mother when lambing out of season. Much of this evidence is now objected to and is claimed to be directed to an erroneous measure of damages as before stated. No exception was taken to any of it before the justice; and we are unable to find the origin in this printed record of the idea that the trial court found, as a matter of fact, that the damages were to be measured by the value of the lambs at the time they were unseasonably dropped. The true measure of damages, if we must state it, would be, in this case, the difference between the plaintiffs' ewes for breeding and other purposes as they were at and as they were after the time of the trespass. There is nothing in the judgment to show that the justice of the peace adopted any other criterion. He presumably took into con FIFTH DEPARTMENT, DECEMBER TERM, 1889. sideration all of the testimony of the witnesses, and probably, to some extent, his own observation of the matter, aided, doubtless, by consultation with his neighbors. His judgment is as follows: "On the 21st day of November, 1885, after waiting four days and after due deliberation, I render judgment in favor of said plaintiffs and against said defendant for the sum of $23.37." There is nothing in the appeal papers to show that he arrived at this result by any erroneous methods. The niceties of the complex question of the measure of damages did not deflect his judgment. The judgment should be affirmed, with costs. BARKER, P. J., and DWIGHT, J. concurred. Judgment affirmed, with costs. MARY E. McCOLLUM, AS ADMINISTRATRIX OF THE GOODS, ETC., MUTUAL LIFE INSURANCE COMPANY OF NEW Life insurance - defenses that the policy was obtained by fraud, and of a breach of warranty, are not inconsistent. -election of remedies · evidence as to other insurance – written proof of the falsity of warranties calls for a decision by the court, upon a question of law. In an action brought to recover upon a policy of life insurance, a defense was interposed that the company, within two months after the issuing of the policy, had made a demand to rescind the contract of insurance and offered to return to the insured, the premium which he had paid, upon the ground that the policy was obtained by fraud. A further defense was interposed of a breach of warranty in the application for the insurance. Held, that the defendant was not precluded from setting up the breach of warranty because of this attempted rescission of the original contract before the death of the insured or because of a refusal to pay the amount of insurance after his death to his personal representatives upon the ground that there was no contract of insurance outstanding for the reason that the same had been obtained by fraud. Brink v. Hanocer Fire Insurance Company (80 N. Y., 113) distinguished. That there was no such election of remedies on the part of the company as to determine the rights of the parties. National Life Insurance Company v. Minch (53 N. Y., 144) distinguished. FIFTH DEPARTMENT, DECEMBER TERM, 1889. In reply to the question, Are you now insured in any other company?" the insured answered, "No." It appeared that at the time he made this answer, he held certificates of membership of insurance on his life for $3,000 in the Buffalo Life and Reserve Association, and for $2,500 in the Rochester Mutual Aid and Accident Association. Held, that the fact that such other life insurance was not in regular and authorized insurance companies, but was in aid and accident associations, did not make the answer a proper one. That the fact that the agent of the insurance company was told by the assured of the existence of these outstanding policies, and that the agent advised him that the question in the application did not refer to such associations, did not excuse or justify the answer, in view of the fact that the powers of the agent were expressly limited by the following notice printed on the back of the policy: 'Powers of Agents. No agent has power to bind the company by receiving any representations or information not contained in the application for this policy." Grattan v. Metropolitan Insurance Company (80 N. Y., 281) distinguished. Where the proof, in regard to the falsity of the warranties contained in the applica tion, is wholly in writing it imposes upon the court the duty of deciding the same as a matter of law, and precludes the submission of this question to the consideration of a jury. APPEAL by the plaintiff from a judgment, entered in the office of the clerk of the county of Niagara on the 19th day of October, 1888, after a trial at the Niagara Circuit before the court and a jury, at which the court directed a verdict in favor of the defendant and ordered a judgment dismissing the complaint; and also from an order, entered in the Niagara county clerk's office on the 29th day of October, 1888, denying the plaintiff's motion for a new trial made upon the minutes of the court. Joel L. Walker, for the appellant. Eugene Cary and Robert Sewell, for the respondent. MACOMBER, J.: This action is brought upon ten policies of life insurance of $5,000 each, issued by the defendant to William S. McCollum, December 22, 1885, the loss in each policy payable to his personal representatives. The defenses are: (1.) Within two months after the issuing of the policies, and in the month of February, 1886, the defendant rescinded the contract of insurance and offered to return to the insured, the premium which he had paid upon each policy, upon the FIFTH DEPARTMENT, DECEMBER TERM, 1889. ground that the policies were obtained by fraud. (2.) A breach of warranty in the application for such insurance, wherein the insured represented that he had no other insurance upon his life at the time of the application for these policies. (3.) A breach of warranty in the application, in that he represented that he had never before been attended by any physician for sickness. (4.) That the insured committed suicide. The attempt on the part of the company to rescind the contract of insurance in the month of February, 1886, was unsuccessful as a matter of negotiation, because the insured refused to accept the return of the premium and surrender the policies. What the result of an action in equity, to accomplish the object sought would have been, it is not needful to pause to inquire. The several policies remained unrescinded and outstanding at the time of the death of the insured which was caused by a pistol shot on the 25th day of June, 1886. It is claimed by the learned counsel for the appellant, that this attempted rescission of the original contract before the death of the insured, and a refusal to pay the amount of insurance after his death to his personal representatives upon the ground that there was no contract of insurance outstanding because the same had been obtained by fraud, precludes the setting up of the defense of a breach of warranty, both in respect to the matter of previous life insurance and the matter of being attended by a physician. In this contention, we cannot concur with counsel. This case is clearly distinguishable from that of Brink v. Hanover Fire Insurance Company (80 N. Y., 113) and other like cases. The case before us, does not present a merely technical defense as did the case of Brink v. Hanover Fire Insurance Company (supra). The charge of fraud, under which it was attempted by the defendant to repudiate the contracts two months after the issuing of the policies, was not based upon any specified false or fraudulent representation or false warranty contained in the application, but arose from the conclusion arrived at by the company's officers that, through certain false representations, the insured had been enabled to get a larger life insurance than he was able to carry, and that his purpose was to relieve his own financial embarrassment by making reclamation upon this company. There is nothing in the selection of the legal position by the company HUN-VOL. LV 14 |