Spitzer v. St. Mark's Ins. Co.

made and signed by the president of such company, or any other officer thereof, according to the by-laws thereof, shall be good and effectual to bind such company to the performance thereof in manner as set forth in the constitution hereinafter recited."

The court say: "A contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law. The force of the policy might indeed have been terminated by actually cancelling it, but a contract to cancel it is as solemn an act as a contract to make it, and to become the act of the company must be executed according to the forms in which they are enabled to act."

The Judge at the trial had charged that an agreement to correct the policy in question had been fully proven, and they must find for the defendants. On writ of error the judgment was reversed, for the reasons above stated. These authorities appear to me decisive, and to settle that the company could only have been bound to pay a loss on the goods removed, by a contract in writing, signed by the president and countersigned by the secretary.

SLOSSON, J.-In the case of the First Baptist Church v. The Brooklyn Fire Insurance Company, (18 Barb. 69,) the Supreme Court for this district decided that a parol agreement that the policy effected by the defendants should be renewed from time to time, without further notice, until one party or the other should give notice of an intention to discontinue; in other words, a parol agreement for a continuous risk, was valid and binding on the company, notwithstanding at the time of the loss the premium for the year had not been paid, nor the certificate of renewal given. The court treated it as an agreement to continue an insurance already effected, or an agreement for a policy, and therefore good, though not in writing, while they agree that a policy itself would not be good unless in writing.

This case was carried up on appeal, and the court of last resort reversed the judgment of the Supreme Court, and held that there was no substantial distinction between an agreement to insure; (a policy,) and one for continuing an insurance which would otherwise expire by its own limitation, and that in either case the agreement must be in writing, and executed in the manner prescribed in the charter, in order to bind the corporation.

Spitzer v. St. Mark's Ins. Co.

The opinion of the court, as delivered by Gardiner, Chief-Justice, is not yet reported, and I was first made acquainted with it on the argument at General Term.

The charter of the Brooklyn Insurance Company provided that policies of insurance, and other contracts founded thereon, should be in writing, signed by the president and countersigned by the secretary.

By the 10th section of the general act of 1849, (Sess. Laws, ch. 308,) providing for the incorporation of insurance companies, and under which the present defendants were organized, it is required of every company organized thereunder to "declare in their charter the mode and manner in which the corporate powers, given under and by virtue of this act, are to be exercised."

Their charter accordingly provides, (§ 10,) that its officers therein designated, shall be authorized, in behalf of the company, to make contracts of insurance, and that the policies issued pur suant to such contracts of insurance shall be signed by the president and countersigned by the secretary.

In other words, its contracts of insurance must be in writing. It cannot be denied that the policy in the present case was applicable only to goods in the place in which they were insured, and could not be extended to the goods after their removal to Grand-street, except by express agreement of the company, and accordingly such an agreement is alleged in the complaint as the foundation of the action.

The effect of such an agreement would be, to make a new contract of insurance, the place where goods are insured being as much a part of the original contract as the stipulation of insurance itself. "A contract," says Judge Marshall, "varying a policy, is as much an instrument as the policy itself and therefore can only be executed in the manner prescribed by law." (Head & Amory v. The Providence Insurance Co., 2 Cranch, p. 168.)

The agreement in the present case, if held to have been proved, was by parol only, and that not express, but by implication from the silence of the officers of the company, coupled with certain acts indicating that the question of extending the policy to the goods in the new place of their deposit had been taken into consideration.

I will not stop to inquire whether these acts were done by any

Spitzer v. St. Mark's Ins. Co.

officers authorized to bind the company, since under the decision of the court of appeals, in the case of the Baptist church, no officer could bind the company by a contract of insurance unless in writing; but I must be permitted to say, that I think good faith required of this company that they should have frankly informed the plaintiff of their intention not to continue the risk, if such was the resolution to which they had come, and not have left him to repose on the belief that he was insured, until the catastrophe had happened against which he supposed himself indemnified. It is true both the president and secretary of the company say that the application to transfer the risk was not made to them personally, and that they never consented to any transfer; but they both admit that the policy was lying in the office several months after it had been left for that purpose, and the secretary says "it was left for the purpose of having the risk transferred," and the president says, that after the fire it was laid before the loss committee. When the policy was left, on the 1st of March, it was entered by the clerk in a book as a case for survey, and the clerk said he would send a surveyor, when the plaintiff called again, on the 10th of April, for his policy, the clerk told him he need not call again, it would be sent to him. The plaintiff again sent for it, but did not get it. After the fire the president told him it was of no use to him.

About a week after the policy had been left at the company's office, a person did call to survey the premises to which the goods had been removed, and was identified by the witness as the same person who had surveyed the premises in Avenue D, where the goods were originally insured, yet the president says no survey was ever made to his knowledge-the surveyor himself was not put on the stand.

I advert to these features of the case, not as affecting the legal rights of the parties, but as showing an absence of that extreme good faith on the part of this company, or, to say the least, a want of that prudent and careful regard for the rights and interests of the plaintiff, which in every instance ought to characterize the transactions of these corporations with their dealers.

I think the decision of the Court of Appeals referred to must be considered as conclusive on the question involved in the present case, and that no written consent to a transfer of risk having

Eno v. Del Vecchio.

been shown, the policy ceased to have any operation, by the removal of the goods from Avenue D to Grand-street, and the defendants are therefore entitled to judgment. (Code, § 265.)

The verdict must therefore be set aside, and the complaint be dismissed with costs.

ENO, Respondent, v. DEL VECCHIO & SNYDER, Appellants. Where the owner of two adjoining lots of ground erects a building upon each with a partition-wall extending partly on each lot, used as a support to each building, and necessary to such support, and thereafter he, or his representatives, conveys the houses and lots separately to different persons, each purchaser acquires an easement, for the support of the house conveyed to him, in so much of the party-wall as stands upon the other lot. Neither purchaser can lawfully remove or interfere with such party-wall, without the consent of the other, so as to injure the other's building. If he do so, though for the purpose of making improvements within the limits of his own lot, he is liable for such injury.

No degree of care or diligence in the performance of the work will relieve him from liability, if injury to the other in fact is caused by making such improvements. The party makes them at his peril.

Nor can he protect himself by making a contract for the work, with a third person exercising an independent employment. The act done is a trespass, and being done by the express direction of the party, both he and his contractor are liable for the consequences.

If the injured building be in the possession of a tenant for a term of

years, the

owner can only recover for the injury to the building itself, and not for the interruption or interference with the possession or use and enjoyment thereof. For such injury to the building the owner may recover, notwithstanding his lease to his tenant contains a covenant binding the tenant to make all alterations and repairs during the term,

(Before HOFFMAN, SLOSSON and WOODRUFF, JJ.)

Heard, April; decided, June, 1856.

APPEAL from a judgment in favor of the plaintiff.

It was before the court upon a case containing the evidence and exceptions taken on the trial. The action was brought by the plaintiff, as owner in fee of the dwelling-house known as 496 Broadway, in the city of New York, to recover damages for the injuries alleged to have been done to his dwelling-house, by the wrongful disturbance and removal of an ancient party-wall, thereD. VI.

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Eno v. Del Vecchio.

by depriving the house of the plaintiff of the support to which it was entitled. The defendants answered separately, and in their answers denied all the material allegations of the complaint.

The cause was tried before BosWORTH, J., and a jury, in March, 1855, and after the cause had been opened on the part of the plaintiff, the counsel for the defendant moved the court for judg ment for the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court denied the motion, and the counsel for the defendants duly excepted.

The counsel for the plaintiff then proved that the premises 494, as well as 496, were portions of a row of similar buildings which had been erected previous to the year 1820, with partition-walls in common as at present, and then gave evidence tending to show that the defendants had lowered the floor of the first story of the premises 494 Broadway; that for that purpose the foundation of the division-wall between Nos. 494 and 496, on the north side of No. 494, had been cut down about eighteen inches; that the cellar of No. 494 had been dug down to about the same depth, and the division-wall underpinned; that in consequence thereof, the division-wall had settled down some two or three inches, carrying down the floors of 496, and that the front and rear brick walls of that building were cracked, and that the damage to No. 496 was from six hundred to fifteen hundred dollars. The plaintiff's witnesses testified that a common and proper manner of underpinning a wall, under which excavations to a small depth are made, is to dig out the earth in sections of two or three feet in length, and to underpin the wall in those sections before digging any more.

On the cross-examination of George Peckham, a witness on the part of the plaintiff, he testified that the premises, No. 496 Broadway, were leased by the plaintiff for a term of years by a written lease, to which he was subscribing witness. The counsel for the defendants called upon the counsel for the plaintiff to produce such lease. The counsel for the plaintiff produced the same, and the counsel for the defendants read it in evidence in the words and figures following, to wit:

"This agreement, made the eighth day of February, in the year 1851, between Amos R. Eno, merchant, of the first part, and Albert Losee, of the second part: