Arguments for Appellant. 2. Both of these questions the court determined in the affirmative. Indeed, there was and could be no controversy upon them. But the court claimed the right to exercise a discretion in denying or granting the motion according to its volition, prejudged the facts, and to avoid their presumed effect, when proved, refused to grant the motion. A judge, sitting at Special Term, cannot thus deprive a party of a substantial right. 3. It was not pretended that the motion was not made in time, or that the defendant was chargeable with any neglect, omission, or default, by which the right to the order asked was lost. III. The order made by the Special Term, granted neither what defendant's motion asked, nor anything equivalent. 1. If the defendant had answered under the order of the court, the result would have been as follows: Verdict, October 12, 1864,.. Verdict against Excelsior Insurance Co., May 25, 1858,.... $3,469 93 $446 66 Interest on same to Oct. 12, 1864,... 199 48 646 14 $2,823 79 Thus, the liability of the Excelsior Insurance Company for two-fifths of plaintiff's damages, would be $646.14, while the defendant's liability for three-fifths of the same damages would be $2,823.79, and the defendant would have been left without remedy. It could not have called upon the Excelsior for contribution. It requires no argument to show the injustice and absurdity of an order which produced such results. 2. The terms of the order, as granted, were oppressive, requiring a payment of costs in a sum nearly equal to the amount allowed to be plead as paid. But these terms could have been borne, if the order had been granted in the manner and form that the defendant was entitled to as a matter of right. IV. The court erred in refusing to permit the defendants to TIFFANY.-VOL. VI. 55 Arguments for Appellant. read in evidence the policy made by the Excelsior Insurance Company. 1. The answer alleges this policy, and avers that it was valid, subsisting and unexpired at the time of the fire mentioned in the complaint. 2. This ninth condition of defendant's policy provided as follows: "In all cases of insurance, this company shall be liable only for such ratable proportion of the loss or damage happening to the 'subject' insured, as the amount insured by this company shall bear to the whole amount insured thereon." 3. The action is founded upon that policy. The condition is a part of the policy, and the extent of defendant's liability thereon is directly affected by the amount of other insurance. The exclusion of this evidence was manifestly erroneous. In pursuance of this erroneous ruling, the court was compelled, for the sake of consistency, to refuse defendant's request to charge. V. The court erred in refusing to dismiss the plaintiff's complaint upon defendant's motion, on the grounds stated. 1. When the two insurers became liable upon separate policies containing the same provision in relation to rebuilding, united in a joint notice of their election to rebuild, and entered upon the performance of the work, they became jointly liable to the insured as joint contractors for the completion of the building. Their separate interests became merged, as to the plaintiff, in one joint contract, and each became liable to him for the performance of every part of that which they undertook to do. Their former separate liabilities formed the consideration for their joint undertaking; but the thing which they became bound to do was a unit and indivisible, and their united agreement covered every part and particle of it alike. (See opinions of MARVIN and DENIO in this case, in Court of Appeals.) 2. The joint liability of the defendants and the Excelsior Insurance Company, as joint contractors, being established, the conclusion would seem to follow that this liability must be enforced by an action against both companies jointly upon Arguments for Appellant. their joint contract. They are united in interest and should be joined as defendants. A complete determination or settlement of the questions involved cannot be had without thus joining them. (Code, §§ 118, 119.) 3. When this cause was before in this court, the court held that "the insured might have his action against both insurers jointly, or either separately, and recover his full damages for the breach of the building contract," and allowed this action to proceed against the appellant upon that theory. But the important fact did not then appear in the case, that another action had been brought against the Excelsior Insurance Company, wherein a recovery had been had, the amount of which had been paid, thereby depriving the defendants of all right to claim and all power to enforce contribution by that company. It is respectfully submitted, that when this court held that the plaintiff "could maintain” a join action against both companies upon the agreement to rebuild, "and that the action in this case should properly have been against both companies," the court should have gone further and held that the plaintiff must proceed by a joint action against both companies upon such joint liability. VI. The Special Term having denied defendant's motion for leave to serve a supplemental answer, the cause was tried upon the original pleadings; and upon the trial the court rejected as evidence the record of judgment in the action against the Excelsior Insurance Company, and the certificate of satisfaction thereof. The effect of the several rulings of the court, and of the order of the Special Term, as demonstrated by actual results, was: 1. To render nugatory and of no effect the ninth condition of defendant's policy, holding defendant as sole insurer for the whole loss, instead of three-fifths of such loss, as provided by the policy. 2. To make defendant alone liable to plaintiff, upon a contract to rebuild, which was joint in every particular, and so declared by this court. Arguments for Appellant. 3. To permit a recovery upon that joint contract against the defendant for the entire amount of plaintiff's damages, when by the action of the plaintiff all right to claim contribution by the co-contractor had been lost to the defendant. 4. To permit two assessments of plaintiff's damages by different juries upon a contract joint and indivisible in its character; one made May 25, 1858, by which the whole amount of such damages is fixed at $1,116.65; and two-fifths thereof, viz., $446.66, is levied upon the Excelsior Insurance Company, and the other made October 12, 1864, whereby the amount is fixed as $3,469.93, and the whole levied upon the defendant. 5. To allow the plaintiff to recover his damages twice. He collected two-fifths of his damages of the Excelsior company on a fair assessment thereof, and on the trial of this action is permitted to take a verdict for the whole amount, assessed at more than double the former assessment. Such rulings and results cannot be sustained upon any principle of law or equity. They are in plain violation of justice and common sense. VII. The decision of the General Term, followed by the palintiff's stipulation to deduct two-fifths from the amount of the verdict, does not cure the previous errors committed, nor afford the defendant adequate relief therefrom. 1. The liability of the Excelsior Insurance Company for its proportion of plaintiff's loss, being two-fifths thereof, had been judicially ascertained, fixed and paid at $446.66, which, with interest to October 12th, 1864, the date of the verdict in this action, is equal to $646.14, and by this decision and stipulation judgment stands against the defendant upon its liability for three-fifths at the same date for $2,081.96. By what rule can this result be justified or sustained? 2. The defendant had a right to prove, and should have been permitted to prove the verdict and judgment against the Excelsior Insurance Company, using these items of testimony upon the trial for what they were worth, either in bar of the action, or to fix the amount of plaintiff's damages. The judgment should be reversed, and a new trial ordered. Opinion of the Court, per DAVIES, J. John H. Reynolds, for the respondent. DAVIES, J. This action was brought to recover the amount of a policy issued by defendants upon certain premises of the plaintiff, whereby the defendants insured him against loss or damage by fire to the extent of $3,000. The building insured was destroyed by fire in January, 1857. At the time of the fire, the plaintiff had another policy of insurance for $2,000 upon the same building, issued by the Excelsior Fire Insurance Company. Each policy contained the usual clauses limiting the liability of the insurer "to such ratable proportion of the loss or damage happening to the subject insured as the amount insured by this company shall bear to the whole amount insured thereon," and making it optional with the company to rebuild or to repair the building within a reasonable time, giving notice of their intention to do so within twenty days after having received the preliminary proofs of loss, &c." The two companies, on the happening of the loss, united in a notice to the plaintiff, stating "that we are prepared to rebuild the said building, and you are requested to furnish us with the plans and specifications of the same." In pursuance of this notice, the companies proceeded to erect and repair the building, in accordance with the plans and specifications furnished, and claimed to have completed the same in conformity therewith. The plaintiff insisted that the building was not thus completed, and on the 4th day of November, 1857, he commenced this action upon the said policy of insurance, and claimed to recover the full amount thereof. On the trial the plaintiff had a verdict for the full amount of the policy and the interest thereon, and judgment thereon was affirmed at the General Term of the Supreme Court. On appeal to this court, the judgment was reversed and a new trial ordered. This court held, that the election to rebuild formed a new contract or agreement to build, according to the plans, and that such contract could be enforced as a building contract, without reference to the amount named in the policy, and that, if the insurer has not |