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tract. 1 Daniels on Negotiable Charles H. Smith and A. H. AmInstruments, 51S; 1 N. H., 80; 50 midoun, for applts. N. Y., 110; 3 Kent's Com., 11 ed., R. S. Newcombe, for respts. 12S; Chitty on Bills, 12th Am. ed.,

Held, That this mode of proced+15; 1 Parsons on B. and N., 371; 6 R. I., 259; 3 Whart., 116; 4 Mc- correct, is not to be encouraged,

ure, though perhaps technically Cord, 593; 11 Iowa, 476. A de- l however convenient it might be mand of payment by letter is in

professionally. sufficient to charge an endorser on

That fraud was not so satisfaca promissory note; he can only be charged by demand made at the torily proved as to warrant the re

versal of the orders appealed from. time and place indicated by the note.

Opinion by Brady, J.; Davis,

P.J., concurred, as did also DanJudgment of General Term, dismissing complaint, reversed, and iels, J., who held that the affidavits new trial ordered.

were very irregularly made, inas

much as several actions could not Opinion by Ruger, Ch.J. All con

be combined in the manner done cur.

in these cases for distinct orders

of arrest in each case. ARREST. PRACTICE.



N. Y. SUPREME COURT. GENERAL James W. Whitney et al., applts.,

TERM. FOURTH DEPT. v. Adolphus Hoffstadt et al., respts.

Rhoda Clark v. The Glens Falls Decided March 4, 1855.

Ins. Co. The practice of presenting a single set of affidavits entitled in several different ac

Decided April, 1885. tions by different plaintiffs against the

An insurance agent can authorize his same defendants, for the purpose of ob

clerk to countersign policies and the taining separate orders of arrest in each

act of the clerk in such case is the action is not to be encouraged.

act of the agent and binds the comAppeals from orders vacating pany just as effectually as if it were orders of arrest granted in these

done by the agent in person, even though

the policy requires that it shall be counactions upon the ground that de

tersigned by the authorized and commisfendants, since the making of the sioned agent. contract sued upon, had disposed Where the proofs of loss required by the of their property with intent to de

terms of a policy are defective, the neg

lect of the insurance company to reject fraud their creditors. The orders

and return them within a reasonable time of arrest vacated were granted in is a waiver of any defect or deficiency seven actions by different plaintiffs therein. against the same defendants upon

Where proofs of loss were forwarded June

19th, 1879, were received by the company a single set of affidavits, which

June 21st, 1879, and the company retained were entitled in the seven actions.

the proofs furnished until the 28th day

of the same month, two days after the Dailey & Bentley, for plff. time for furnishing proofs had expired,

Erastus P. Hart, for deft. without objecting to them, and then returned them on the ground that the proofs Held, In determining the prowere not made by plaintiff, Held, That priety of a nonsuit the court is it was for the jury to determine whether legally bound to assume the truth there was or not such neglect on the part of defendant as to constitute a waiver.

of the facts which the testimony

8 legitimately tends to prove. Appeal by defendant from order Barb., 110; 20 N. Y., 492; 35 id., 9of Special Term, setting aside a

25; 5 id., 196. Assuming, then, nonsuit and granting a new trial.

that M. D. was authorized by deThe action was upon a policy of

fendant's agent to issue this policy, insurance against loss by fire cor

the question arises whether defendering plaintiff's barn. The policy

ant's agent could delegate such in suit was countersigned and delivered by M. D., a clerk in the

power to his clerk. Story states

the rule as follows: office of D. C., the authorized and

“The authority is exclusively commissioned agent of defendant. M. D. was authorized by defend personal unless, from the express ant's said agent D. C. to contract language used or from the fair

out of new insurance, renewals, to make presumptions growing monthly and daily reports and col

the particulars or of the usages of lects premium on policies and re

trade, a broader power was intend

ed to be conferred on the agent." newals issued.

The proofs of loss were signed Story on Agency, š 1+; Dunlap's and verified by plaintiff's husband Paley on Agency, 175, n. 1;' i

Wait's Actions and Defences, 235; and agent. The signing and verification of the proofs was an act

2 Kent's Com., 6:33. which the policy required the

In the case of Bodine v. Exchange claimant to personally perform.

Fire Ins. Co., Judge Earl, in deThe proofs were forwarded to livering the opinion of the court, defendant on the 19th day of June, says: 1879, and were received by defend- “We know, according to the orant as early as the 21st day of the dinary course of business, that same month. Plaintiff then had insurance agents frequently have tive days within which to furnish clerks to assist them, and that they other proofs if those should prove could not transact their business if unsatisfactory to defendant. De- obliged to attend to all the details fendant retained the proofs fur- in person ; and these clerks can nished until the 25th day of the bind their principals in any of the month, two days after the time business which they are authorized for furnishing proofs had expired, to transact. An insurance agent without objecting to them, and can authorize his clerk to contract then returned them, upon the for risks, to deliver policies, to colground, among others, that the lect premiums, and to take payproofs were not made by plaintiff. ment of premiums in cash or se

curities, or to give credit for pre- WATER-COURSES. DIVERmiums or to demand cash; and the

SION. act of the clerk in all such cases is the act of the agent, and binds the N. Y. SUPREME COURT. GENERAL company just as effectually as if it

TERM. FOURTH DEPT. were done by the agent in person.” Jacob W. Mitchell, respt., v. 51 X. Y., 123. See also 1+ Hun, The N. Y., L. E. & W. RR. CO., 4.38; 15 id., 230); 63 N. Y., 463; 68

applt. id., +37; 5.5 id., +75. I infer that the principle upon which it was

Decided April, 1855. held in the Bodine case that the When a corporation or individual attempts clerk of an agent of an insurance

by artificial means to interfere with the

natural action of water to serve its or his company might perform the acts

own purposes, he must see to it that it enumerated was that "from a fair

shall be done in such a way as shall not presumption growing out of the unnecessarily do an injury to his neightransaction, or of the usage or cus

bor. tom of the insurance business, a Appeal from judgment in favor broader power than mere authori- of plaintiff, entered upon a verdict, ty to act personally was intended and from an order denying a moto be conferred.” If within that tion for a new trial. principle the clerk can contract for The RR. Co. erected an embankrisks, he can, I think, perform ment near the mouth of Dry Brook, the act of countersigning the poli- whereby the surface waters were cies within the same principle. prevented from passing below the But it is said that the policy re- RR, as they had before done. It quires that it shall be countersigned then opened a ditch to carry said by the authorized and commis

waters along the upper side of the sioned agent. True, but within

RR. to the southeast along the side the Bodine case the countersign- of its track, and on its own land, to ment by the clerk is the act of such a point below plaintiff's land, which agent.

was adjoining. For a series of Held further, That notice by years this ditch was kept open and plaintiff's husband was sufficient,

the water discharged through it there being no objection or offer to

without unnecessary injury to return it upon that ground. 76 plaintiff. But after 1877 defendant N. Y., +39. It was for the jury failed to keep open the ditch, whereto determine whether there was or by the water was accumulated in not such neglect on the part of de- unusual quantities in a depression fendant as to constitute a waiver.

of the surface of the ground and Order granting

by reason thereof overflowed plaintrial

tiff's land, causing the injury for affirmed upon the opinion of Mr.

which this action is brought. This Justice Martin at Special Term.

act resulted in carrying surface Mem. by Boardman, J.; Hardin, waters by a ditch, and by its failP.J., and Follett, J., concur. ure to keep the ditch open dis

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charging an unusual and unnatural Where such creditor was afterward emquantity of water upon plaintiff's ployed by other creditors to induce the land.

debtor to pay them a sum in addition to

the offer, in an action to recover the agreed D. C. Robinson, for applt.

compensation for such services, Held, S. S. Taylor, for respt.

That a motion for nonsuit on the ground Held, That the facts bring the that a double agency existed and thereby case within those decisions forbid- a fraud was practiced on defendants was

properly denied; that the question of ding such interference with the

fraud was for the jury to determine flow of surface water to the detri

The complaint in this action set ment of others. Andrews, J., in

up a special contract, whereby Barclay v. Wilcox, 86 N. Y., 147, plaintiff was to go to Canada and says the owner of land "may get

see E. B., the senior member of the rid of it (surface water] in any i insolvent firm of E. B. & Co., which way he can, provided only he does

was largely indebted to defendants, not cast it by drains or ditches

and procure him to pay $24,000, in upon the land of his neighbor.” To

cash, in addition to an offer of a the same effect is Noonan v. City compromise of fifty cents on the of Albany, 79 N. Y., 170; 67 id., dollar of said indebtedness, which 267; 65 id., 311; 20 W. Dig., 528.

had been previously made to deThe same principle applies to high- fendants on behalf of said firm, way officers who stop up culverts defendants agreeing that if plaintiff and carry the surface water upon succeeded in procuring said pay. the upper side of a highway for ments to be made they would pay some distance and then through a

him $1,000 and his traveling exculvert discharge the same in un

penses and disbursements. The natural and unusual quantities complaint alleged performance on upon the lower proprietor to his plaintiff's part and refusal by deinjury. 63 Barb., 185.

fendants to pay plaintiff as aforeJudgment and order affirmed, said. It appeared that plaintiff was with costs.

a friend of E. B., and also a creditor Opinion by Boardman, J.; Har

of the firm of E. B. & Co., which lin, P.J., concurs; Follett, J., not

facts were known to defendants, sitting

who were also aware that plaintiff

desired to have a compromise by AGENCY. FRAUD.

E. B. & Co. and their creditors efN. Y. COURT OF APPEALS.

fected, and had urged the acceptBacon, admrx., respt., v. Claflin

ance of one already offered, and et al., applts.

defendants supposed plaintiff knew Decided March 3, 1885.

where E. B. was. There was no Where an insolvent, offering a compromise proof that plaintiff was in any way

requests some creditor to accept the offer employed by E. B. & Co. Plaintiff and advise its acceptance by other credi- exerted his influence on E. B. and tors, the latter by doing as requested does

fulfilled his contract with defendnot become the agent of the debtor to make the settlement or commit a fraud ants. Defendants moved for a upon those be advises to accept.

nonsuit on the ground that a

double agency existed on the part Where a party refers the individual with of plaintiff, involving the exercise

whom he may be dealing to another per

son for information, that which may be in some degree of judgment and

obtained in consequence of the reference discretion, and so imposing upon is evidence against the party making it. him the performance of inconsis

Appeal from a judgment recovtent duties, and thereby a fraud

ered on the dismissal of the comwas practiced on defendants. The

plaint at circuit. motion was denied. Charles W. Gould, for applts.

This action was brought for Aaron Pennington Whitehead,

alleged deceit on the part of defor respt.

fendant in the sale of a ship to Held, No error.

Whether the plaintiff, through which deceit it evidence justified defendants' as

was alleged that plaintiff was in

duced to purchase said ship and sumption and whethera fraud was

whereby plaintiff thereby practiced was to be deter

plaintiff claimed


have suffered damage on the mined by the jury. It was inherent in the contract that there could ground that the ship was not as be no breach of trust or confidence represented. The complaint was

dismissed at the close of plaintiff's by plaintiff towards defendants as it respected the terms of compro

evidence upon the ground that he

had failed to make out a case mise, for they reposed none in him. Where an insolvent offering a

against defendant. compromise requests some creditor,

It appeared that during the neupon whose friendship and goodwill gotiations for the sale of the veshe thinks he can rely, to accept the sel defendant referred plaintiff to offer for himself and advise its ac

the captain, who, he stated, would ceptance by the other creditors, show him the vessel and could tell and the latter promises to do so

him all about her, and plaintiff and fulfills the promise, he does proposed to prove what the captain not thereby become the agent of had said concerning the vessel in a the debtor to make the settlement conversation which plaintiff subor commit a fraud upon those he sequently had with him upon the advises to accept.

subject. This evidence was exJudgment of General Term, af

cluded. firming judgment on verdict for Dexter A. Hawkins, for applt. plaintiff, affirmed.

E. W. Taft and R. D. Benedict, Opinion by Finch, J. All con

for respt. cur, except Rapallo, J., not voting. . Held, That so far the

exclusion of this evidence may EVIDENCE.

have proceeded upon the ground N. Y. SUPREME COURT. GENERAL | that plaintiff could not prove furTERM. FIRST DEPT.

ther representations as to the conJames Bigler, applt., v. Edwin dition of the vessel after he had Atkins, respt.

subscribed the memorandum of the Decided March 4, 1885.

contract for her purchase, the deciVol. 21-No. 9a.


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