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mandamus, reversed, and motion demurrer is sustained, and the comfor mandamus denied.

plaint must be dismissed as to said Opinion by Miller, J. All con- second cause of action, with costs cur, except Earl and Finch, JJ., to the defendant,” and directed dissenting

judgment to be entered accord

ingly. Upon this order defendants JUDGMENT.

entered judgment dismissing the N. Y. SUPREME COURT. GENERAL complaint as to said second cause TERM. FIFTH DEPT.

of action, and for $16 costs to the

defendants, from which plaintiff William H. Robinson, applt., v.

appealed. Nathaniel Hall, impld., respt.

J. M. Dunning, for applt. Decided Jan., 1885.

A. H. Harris, for respt. No decʻsion of the Special Term sustaining a Held, That no final judgment demurrer to one of the causes of action could be entered while the issues set forth in the complaint, and dismissing of law raised by the other grounds the complaint as to that cause of action

of demurrer remained undeterwith costs to the defendant, and directing judgment to be entered accordingly, mined, Code, $ 1021; 6 How. 113; while the issues of law raised by the other 8 Abb., 366; 9 Hun, 633; 8 J. & S., grounds of demurrer remain undeter

211, and the entry of judgment for mined. The entry of a judgment for

costs by defendant was irregular ; costs by defendant is, in such case, irregular ; but the remedy of plaintiff is by ap. but that the remedy of plaintiff plication to the Special Term, and not by was by application to the Court at appeal.

Special Term, and not by appeal to Appeal from judgment entered this court. 10 N. Y., 570 ; 22 N. upon decision at Special Term, sus- Y., 425. taining a demurrer by defendants. On such an application the Court

Defendant demurred to the com- could set aside the judgment irreplaint upon the grounds, first, that gularly entered, and make such the causes of action have been im- order as would properly dispose of properly united ; second, that the the remaining issues raised by the complaint in the second and third demurrer, and in case the demurrer causes of action therein set forth should be overruled as to such isdoes not state facts sufficient to sues secure to the defendant the constitute a cause of action. The right to answer upon such terms as complaint contained five separate should be imposed. causes of action. The issues of law We are aware that the General raised by the demurrer were argu- Term has entertained an appeal ed at Special Term, and the justice and reversed in similar cases, but presiding held and decided “that it does not appear that the attensaid second cause of action con- tion of the Court in those cases was tained in the complaint herein called to the question here discussdoes not state facts sufficient to ed. We are of the opinion that constitute a cause of action. The correct practice requires us to re

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fuse to entertain this appeal, and dividend system as shall cease to to remit the parties to the Special be in force before the completion Term, where their rights can all be of their respective ten-year divi. settled.

dend periods shall be apportioned This appeal should therefore be equitably among such policies of dismissed, but as both parties are the same class as shall complete in fault in their practice without their ten-year dividend period. The costs and without prejudice to the ten-year dividend when made shall right of the plaintiff to apply to be applied to the purchase of an Court at Special Term for such re- annuity on and to continue during lief as he should be advised.

the life of the party insured under Opinion by Childs, J.; Bradley this policy, and for which the comand Haight, JJ., concur.

pany will issue an annuity bond, and the first payment of such an

nuity shall be due one year after INSURANCE. ACCOUNTING.

the termination of the ten-year N. Y. COMMON PLEAS. GENERAL dividend period, provided that, TERM.

should the party assured under Frederick Uhlman V. The New this policy request it in writing York Life Ins. Co.

within thirty days from the ter

mination of such ten-year dividend Decided Jan. 16, 1885.

period, the company will pay the Where a life insurance policy provides for value of the bond in cash to Fred

an accumulation and preservation of div- erick Uhlman or assigns at the idends which it had earned at the expira- date the first payment under such tion of ten years from surplus profits derived from lapsed policies, which divi- annuity bond shall be due.” Upon dends were to be apportioned equitably the expiration of ten years from and applied to an annuity bond, or paid date of policy the defendant notiin value to the assured in cash, Held, That the relation created between the company

fied plaintiff that he was entitled and the insured is not fiduciary, but rests

to an annuity bond or its value in in contract, and that the insured is not cash, $790.77. Plaintiff therefore entitled to an accounting; the determi- demanded an accounting, which nation of the amount of dividend being

was refused, and he then filed this confined to the company, and only to be questioned in an action alleging non

bill praying a decree for an acperformance of contract obligation. counting and the issuing to him of

Motion by defendant for a new annuity bond for the sum he might trial at General Term under $ 1001, appear entitled to or payment of Code Civ. Proc.

its value in cash. The Court be

low (Van Hossen, J.), by interlocuPlaintiff was the holder of a life insurance policy, dated December tory decree, directed an accounting

before a referee. 29, 1871, issued by the defendant, containing this clause :

William Hornblower, for the “All surplus or profits derived

motion. from such policies on the ten-year Blumenstiel & Hirsch, opposed.

Held, That the relation created the plaintiff until after the divibetween the parties to this action dend has been declared. The by the insurance policy is not fidu- plaintiff, therefore, can have no ciary, but rests in contract.

right as creditor to an account, bePlaintiff's rights thereunder are :

cause the settling of the account First, An equitable apportion and the declaration of a dividend ment of the surplus or profits de must precede and constitute him a rived by the company from such

creditor. The position is not ten

able that because a complicated policies, in plaintiff's class, as shall have lapsed during the ten

account is necessary to ascertain year period. Second, That the ten

and apportion the surplus the year dividend may be applied by plaintiff is entitled to invoke the

exercise of equitable jurisdiction. plaintiff to the purchase of an

This could only be so if plaintiff annuity, for which defendant will issue a bond, or, in certain event,

had any right to interfere in the

account. pay its value in cash.

The con

The contract gives him tract obligation of defendant is

none by its terms or intendment,

and there are neither mutual acto equitably apportion the surplus or profits so derived, give the bond counts, complicated dealings, nor

fiduciary relationship. or pay the cash.

The amount which became due Judgment reversed and new trial to plaintiff is a dividend, and ordered, costs to abide event. neither more nor less. Neither by analogy to other corporations de

Opinion by Beach, J.; Daly, Ch.

J., concurs. claring dividends, nor under any provision in the contract, is plain- Larremore, J., dissenting, wrote: tiff to have aught to do with *** “ These dividends, I think, determining the gross surplus or constituted a trust fund in the its apportionment. The defend

hands of the company for the beneant's obligation under the contract fit of its policy-holders, who have respecting the declaration of a div

a right to know the facts and idend at the appointed time makes figures upon which such dividends the case dissimilar to those adjudi- were allowed. The defendant, by cations where corporations were its answer, has raised the issue of parties not bound by like contract. an accounting, and so complicated But the principle applies to the in its nature that its consideration amount of the dividend. Deter- by a jury is evidently impracticmination of amount is a duty con- able. This case is distinguishable fided to the company, and can only from “Taylor v. Charter Oak Life be questioned by plaintiff in an ac- Insurance Co., 9 Daly, 489, and tion alleging non-performance of like cases, in which the policies had contract--obligation.

There are

not matured, and in which the no such allegations in this bill.

rights of the assured were continThe defendant owes no debt to gent.”

NEW TRIAL.

Code, and more than four years N. Y. SUPREME Court. GENERAL elapsed from entry of judgment

to making this motion. The judgTERM. FIFTH DEPT.

ment must not be disturbed on the John Fisher, respt., v. Stephen grounds stated. M. Corwin, applt.

Order affirmed, with $10 costs Decided Jan., 1885.

and disbursements. A new trial, on the ground of newly dis- Opinion by Barker, J.; Haight, covered evidence, must be denied after

Bradley and Lewis, JJ., concur. the judgment has been affirmed on appeal.

Appeal from Special Term order, denying defendant's application for

LEASE. new trial on the ground of newly- N. Y. SUPREME COURT. GENERAL discovered evidence.

TERM. FOURTH DEPT. The issues were tried by a referee

John P. Vidvard, applt., v. Danwho reported in plaintiff's favor,

iel J. Cushman, respt. and judgment was entered Dec. 8, 1877. Defendant appealed to Gen

Daniel J. Cushman, respt., v. eral Term, which Court in October, John P. Vidvard, applt. 1881, ordered a new trial unless Decided Jan., 1885. plaintiff stipulated to reduce the

A new stipulation may, by consent of the damages. Plaintiff made the re

parties, be added to a contract after its quired stipulation, and the judg- execution, if such stipulation is evidenced

and executed in the mode that the originment was accordingly affirmed.

al contract is required to be evidenced Thereupon, without delay, this mo

and executed. tion was made at Special Term. Where the added stipulation is written in

the lease by the lessor in the presence John W. Beckley, for applt.

and with the assent of the lessee, it is unGeorge Ripsom, for respt.

necessary to re-sign the lease. Held, That the motion comes too Appeals from judgments, entered late. It is not the practice to grant upon decision at Special Term, adnew trials on the ground of newly- judging that the parties have the discovered evidence after judgment right to use a stairway in common. has been affirmed on appeal. Be- Oct. 25, 1879, V. leased of R. fore and since the first code the Bros. the premises No. 27 John St., practice has been not to entertain Utica, for five years, from May 1, motions of this character after ap- 1879, by a lease not under seal. peal from final judgment. The Dec. 1, 1878, C. leased of R. Bros. current of decisions is not to enter the adjoining premises No. 29 John tain the motion after entry of St., until Jan., 1881, by lease under judgment. 15 Johns., 354 ; 4 Hill, seal. Both leases were executed 125 ; 27 How., 358 ; 30 Barb., 656 ; in duplicate, each party retaining 33 Id., 155 ; 38 N. Y., 42.

This motion is of the same class In No. 27 is the stairway in disas those enumerated in $ 724 of the pute, by which the upper floors in

one.

both buildings are reached, a door- P. C. J. De Angelis, for applt. way opening from the hallway on D. C. Stoddard, for respt. the second floor into No. 29. A

Held, That in the face of this controversy arose between V. and

evidence and of V.'s failure to exC. as to the right of the latter to use the stairway as a means of en- plain this Court would not be justitrance to the upper floors of No. 29.

fied in reversing the finding of fact. The trial court found that after of evidence is greatly in favor of

It cannot be said that the weight the execution of the leases it was

V. It is difficult to see how Judge agreed between V. and his lessors, Cox, who must have written from in consideration of $35 paid by the

the dictation or upon information lessors to him, that the tenants of

received from V., came to write the Nos. 27 and 29 should use the stairway in No. 27 in common, and that provisions referred to if there had

been no talk in respect to the staira clause expressing the agreement was then written in the duplicate way. Assuming that the added lease held by the lessors in the pre- pellant's brief, it certainly does not

provision is correctly stated in apsence and with the assent of V.

tend to corroborate or strengthen The evidence on this question

the evidence of V. was conflicting. R. and V. squarely contradicted each other. R. testi- By the consent of the parties a fied that after the alteration had

new stipulation may be added to a been made, and before the suits contract subsequent to its execuwere begun, V. exhibited his dupli- tion, if the new stipulation is evicate lease, and that the new provi- denced and executed in the mode sion was written therein in the that the original contract is rehandwriting of Judge Cox. V.'s quired to be evidenced and executduplicate was produced on the trial ed. 9 East, 350; Whart. Ev., $ 624; and showed that some provision

1 Chit. Cont. (11 Am. Ed.) 155; Reed had been interlined and erased, oc

on Stat. of Frauds, S 454; Leake's cupying the same position as the Cont., 795. The original lease. and added clause in the lessors' dupli- the lease as modified, being for cate, but its terms do not appear

terms longer than a year, were reexcept as stated in appellant's brief. quired by the Statute of Frauds to It there appears as follows: “The

be in writing and signed by the parties now occupying No. 29

lessors. The original lease was in John St. shall have the right to use

writing, as was the modified lease. the stairway in No. 27 for the pe

It is claimed that the new lease riod of one month.” V. testified is not binding, because it was not that when the $35 was paid, “No- re-signed by the lessors and re-dething was said about the stairway livered. at all, sir.” It does not appear that Held, Untenable. The added V. attempted to explain why the stipulation was written in the lease clause was written in the lease or by one of the lessors in the presence why it was erased.

and with the assent of the lessee.

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