"June 26, 09. Lewis accepts "John H. Blackwood, Belasco Theater, Los Angeles, Cal. hundred until September first hundred twenty-five after. Will report July twelve. Send transportation before July second. Mrs. B. Packard." The defendant applied to Mrs. Packard, as he admits he had been in the habit of doing for several years, when he desired actors. Pursuant to those telegrams, the plaintiff went to Los Angeles, and on July 19th commenced playing at the theater of which the defendant was manager, and continued for 7 weeks, at the end of which time he was discharged, as far as appears, without cause. While a number of reasons are urged by the respondent to support the dismissal of the complaint at the close of the plaintiff's evidence, only two require discussion. [1] Whether the telegrams made out a contract for a definite term depended on the meaning of the words "regular engagement" in the first telegram. The evidence of the plaintiff tends to show that those words had a definite meaning in the theatrical business, and that as applied to an engagement in a theater like the defendant's, which ran throughout the year, meant an engagement for 52 weeks. The telegrams themselves furnish internal evidence to show that the engagement contemplated by the defendant was at least for some definite period extending beyond the summer. We think the case was one which justified proof of the meaning of the words "regular engagement," as used by the defendant, and that, as explained by the plaintiff's evidence, the telegrams were sufficient to make out a contract for a definite term of 52 weeks. [2] The defendant pleaded, in effect, that at the time of the contract he was to the knowledge of the plaintiff acting as general manager of the Blackwood-Belasco Company, a corporation, and that the plaintiff was employed by said company, through the defendant as agent. The defendant was allowed to offer certain evidence, during the presentation of the plaintiff's side of the case, bearing upon the claim that he was acting as agent for a disclosed principal. It would be sufficient to show the error of the court on this branch of the case to state that, when the complaint was dismissed, it had not been proved that there was in fact any such company or corporation as the Blackwood-Belasco Company. But, assuming that that had been proved, and that it appeared that the defendant was acting as agent. for it in employing the plaintiff, there is no evidence whatever that the plaintiff knew that fact. The telegrams were sent by the defendant in his own name, and, to show knowledge on the part of the plaintiff, he relies upon a letter written to Mrs. Packard six months before on an entirely different matter. Assuming that that letter was sufficient to show knowledge on the part of Mrs. Packard, that knowledge was not chargeable to the plaintiff. In the first place, the knowledge did not come to Mrs. Packard in the course of her employment, or even at a time when she was acting as agent for the plaintiff. Moreover, the evidence shows that she was a mere go-between, an agent of both parties. She was the defendant's agent to communicate his offer to the plaintiff, and she was the latter's agent to communicate his acceptance to the defendant. Anything she may have learned at a different time, and wholly unconnected with her agency for the plaintiff, was not chargeable to him. The evidence, showing any knowledge acquired by the plaintiff after the contract of employment was made, could not have the effect of changing the contract. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur. ROSENBLOOM v. MARYLAND CASUALTY CO. (Supreme Court, Appellate Division, First Department. November 8, 1912.) 1. INSURANCE (§ 388*)-INDEMNITY INSURANCE-LIABILITY. An indemnity insurer, receiving notice of an action against insured, and undertaking, with knowledge of the facts, the defense of the action, and depriving insured of any control of it, and preventing a settlement for a comparatively small sum, is, after judgment against insured, estopped to deny that the accident is within the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. § 388.*] 2. PARTIES (§ 80*)-DEFECT OF PARTIES-OBJECTION-Demurrer. Where an action on an indemnity policy was brought by an assignee thereof, who sought to recover on the ground that a third person had obtained judgment against him, a defect of parties, if any, was apparent from the face of the complaint, and an objection thereto must be taken by demurrer. [Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 123–131, 170; Dec. Dig. § 80.*] 3. INSURANCE (§ 388*)-INDEMNITY INSURANCE-LIABILITY. An indemnity insurer, controlling the defense of an action against insured, and neglecting to appeal from a judgment against insured, may not defeat an action on the policy on the ground that there had been no adjudication by a court of last resort. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. § 388.*] Appeal from Trial Term, New York County. Action by Jacob Rosenbloom against the Maryland Casualty Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. James J. Mahoney, of New York City, for appellant. M. E. Kelley, of New York City, for respondent. SCOTT, J. There are no disputed questions of fact, as was conceded by both parties at the close of the trial, when both moved for a direction of a verdict, and neither asked that any question be submitted to the jury. The defendant issued its policy of indemnity insurance to the Apollo Realty Company, as owner of a building in course of construction in the city of New York. The Realty Company afterwards For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes conveyed the premises to plaintiff and two other persons, and at the same time assigned and actually delivered the policy to its grantees, with the consent of the defendant, which was indorsed in writing upon the policy. The erection of the building was proceeded with by several general contractors, so that no one contractor was in charge of the whole work; the premises remaining in the general possession and control of the owners. On June 11, 1906, one Julius Goldstein, in the employ of one of the contractors, fell through the iron beams on the fourth floor to the ground below, sustaining injuries. He sued the owners for damages, upon the ground that they had failed to perform the statutory duty of planking over the floors. His complaint set forth clearly the grounds upon which he sought to hold the owners liable. Notice of the accident was given to defendant as soon as the assured heard of it, and when the action was commenced the papers were delivered to defendant, which undertook the defense without protest or reservation. It drew an answer by its own attorney, prepared the case for trial, subpoenaed the witnesses, and tried the case, without inviting the assured to participate in the defense. Indeed, it refused to consent that the action should be compromised and settled, as it could have been at one time, for a comparatively insignificant sum. The action resulted in a verdict for the plaintiff for $1,500. After the trial the assured and the attorney for the insurer had negotiations concerning an appeal. The defendant did not appeal, and did not definitely decline to do so until the time to appeal had expired; nor did it notify the assured that they must appeal themselves, if they desired the judgment to be appealed against. The result was that plaintiff was ultimately obliged to pay the judgment, and now sues to recover the amount paid. [1] The defense mainly relied upon is that the injury for which Goldstein recovered judgment was not a liability insured against by the terms of the policy. Whether it was, or not, is perhaps open to question, but that question we are not called upon to consider. As has already been said, the complaint in the Goldstein Case disclosed precisely the nature of his claim and the ground upon which he sought to hold the owners liable, so that, when the defendant assumed the defense of the action, it had every means of ascertaining whether or not the loss was one for which it was liable under its policy. It is perfectly well settled that under such circumstances an insurer, who has with full knowledge undertaken the defense of an action, and deprived the assured of any control of it, will be deemed estopped to deny that the accident was within the terms of the policy. Glens Falls Cement Co., v. Travelers' Ins. Co., 11 App. Div. 411, 42 N. Y. Supp. 285, affirmed 162 N. Y. 399, 56 N. E. 897; Brassil v. Maryland Casualty Co., 147 App. Div. 815, 133 N. Y. Supp. 187; Royle Min. ing Co. v. Fidelity & Casualty Co., 126 Mo. App. 104, 103 S. W. 1098; Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo. App. 327, 133 S. W. 664; Tozer v. Ocean Accident & Guarantee Corp., 94 Minn. 478, 103 N. W. 509; Globe Nav. Co. v. Maryland Casualty Co., 39 Wash. 299, 81 Pac. 826. As this court pointed out in Brassil v. Maryland Casualty Co., supra, the position of an insurer, who denies its liability from the first and refuses to defend, is quite different from that of one who elects to defend and thus ousts the assured from any opportunity to defend himself. [2] The other grounds upon which a reversal is asked do not commend themselves to our judgment and require no extended comment. If there was a defect of parties plaintiff, that fact appeared on the face of the complaint and the objection should have been taken by demurrer. Sullivan v. New York R. C. Co., 119 N. Y. 356, 23 N. E. 820. [3] The objection that there has been no adjudication by a court of last resort can hardly be seriously urged, when it was the defendant itself that neglected to appeal. The judgment and order must be affirmed, with costs. All concur. VOSE v. CONKLING et al. (Supreme Court, Appellate Division, First Department. November 8, 1912.) SUBROGATION (§ 26*)-PERSONS ENTITLED-Volunteers. Testatrix in 1889 executed a mortgage on a leasehold to secure a bond for $2,500, and, the representative of the bondholder having demanded payment, testatrix's administratrix in 1902, the executor having died, applied to plaintiff, the representative of another estate, for a $3,000 loan with which to pay the mortgage indebtedness and taxes on the leasehold, giving as security two bonds, for $1,500 each, and a mortgage on the leasehold, and the sum borrowed was used to pay the $2,500 mortgage, leaving a surplus which went into the estate. Plaintiff thereafter assigned the bonds and mortgage to herself individually, and in 1910 began action and procured deficiency judgments against defendant, who was meanwhile appointed administratrix with the will annexed of testatrix's estate, and seeks to charge the realty of such estate to satisfy the judgments. Held, that plaintiff's loan to the administratrix was not made on the faith of the original indebtedness, but on new security, and in making the loan she was a mere volunteer, having no interest to protect, so that she cannot charge testatrix's realty, on the ground that there was no available personalty. [Ed. Note. For other cases, see Subrogation, Cent. Dig. § 67; Dec. Dig. § 26.*] Appeal from Special Term, New York County. Action by Flora L. Vose against Joseph C. Conkling, individually and as administrator, and others. From an interlocutory judgment at Special Term (74 Misc. Rep. 13, 134 N. Y. Supp. 718), overruling a demurrer to the complaint, defendants appeal. Reversed, and demurrer sustained. Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, MILLER, and DOWLING, JJ. Edgar J. Nathan, of New York City, for appellants. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes MILLER, J. Ann Maria Miller died on the 4th day of September, 1893, seised in fee of certain real estate, which the plaintiff in this action seeks to have charged with the payment of two deficiency judgments against an administrator of the said decedent, basing her right to that relief upon the following facts: The said decedent owned two leaseholds, upon one of which she had given a mortgage on the 5th of September, 1889, to secure the payment of her bond for the sum of $2,500 to one Matilda Wall. By her will, after directing the payment of her debts and making certain small bequests, she gave her property to trustees to divide the income among her husband and two children, a son and a daughter, until the death of her husband and son, and upon their death she gave the remainder to her daughter absolutely. Her executor and trustee, the said husband, died on the 2d of April, 1895, without having settled the estate, and letters of administration with the will annexed were issued to the daughter. On the 23d of July, 1902, the representatives of Matilda Wall, who had died, demanded payment of the said bond and mortgage, and the said administratrix applied to the plaintiff and her sister, as administrators of the estate of Myra A. Wheeler, for a loan of $3,000, with which to pay the said mortgage indebtedness and the taxes on said leaseholds, and as security for said loan she, as administratrix, gave two bonds, of $1,500 each, and a mortgage of $1,500 on each of said leaseholds. Said sum of $3,000, thus obtained, was used to pay the bond and mortgage of $2,500, executed by said testator, taxes which had accumulated on said leaseholds, and a surplus of $40.28 remaining after said payments was retained as assets of the estate. Said loan of $3,000 was made by the plaintiff and her sister upon the advice of counsel that said leaseholds were good security, and that the said administratrix could lawfully execute mortgages thereon. Thereafter the plaintiff, as sole surviving administratrix of Myra Wheeler, assigned said bonds and mortgages of $1,500 each to herself individually, and on the 23d day of July, 1910, began two separate actions thereon, and recovered deficiency judgments for $1,510.95 and $1.482.50, respectively, against the defendant Joseph C. Conkling, as administrator with the will annexed of said Miller; the former administrator having meanwhile died without having settled the estate, and he having been appointed as such. The complaint alleges that said testatrix left no personal property, "so far as this plaintiff has been able to discover, except the aforesaid leaseholds," and we shall assume that that is a sufficient averment that the deficiency judgments cannot be satisfied out of the personal estate. It is, of course, conceded that the judgments did not bind the decedent's real estate. See section 1823 of the Code of Civil Procedure. It may be assumed, however, that they might be enforced against the personal estate, if there were any, and, indeed, the Code inferentially so provides. See section 1814, Code of Civil Procedure. They did not purport to be, and in upon a personal obligation of the testator. paid and discharged, and in place of it the ministrator, as such, secured by mortgages fact were not, based That obligation was obligation of the adon personal property, |
