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law, since warranty is treated as a condia most rapid and accurate manner, not tion precedent to the right of action. The only in regard to matters of general insurers may at their option insert these interest but also in regard to the history warranty clauses in their policies, and of any particular ship, the name of the

thus prevent all recovery if they are not master, important facts in his life bearing carried out. . This subject, however, is on the safety of the ship, etc. See Martin's qualified by the doctrine of waiver. By History of Lloyds, pp. 368, 374.

waiver is meant some act on the part of GENERAL NOTES ON MARINE INSURANCE. the insurers or other agents whereby the

Question of notice to an agent. It has strict conditions of the policy are not been held in England that if one be em- insisted upon. The question usually arises ployed as an agent to effect insurance, and in the case where incorporated companies he obtains knowledge of a material fact

are insurers. The power to waive in such which he conceals from the principal and cases is regularly vested in such officers another agent is substituted to effect the

as manage the business of the company at insurance, the latter having no knowledge the home office, e. g., President and Secof the fact referred to, the insurer is dis

retary. But as these companies transact charged. In other words the insured is an extensive business in other towns simbound to communicate not only all mater- ilar questions may arise as to waiver by ial facts which he knew, but also all

agents. The distinction must be taken which it was the duty of an agent to com- between a general and a special agent. An municate to him. See 17 Q. B. Div.,

.533. instance of a general agent is one having This view does not accord with the prin

power of his own judgment to issue the ciple laid down in 12 Wheaten, 408, that policy; he may then waive the conditions. the concealment must be by an agent See 65 N.Y., 6, 195; 76 N. Y., 416. Waiver, actually employed to effect the insurance.

however, implies full knowledge of the It is not sanctioned by the House of Lords.

facts on the part of the insurers. 90 U.S., See 12 App. Case, 531.

326. The power of a general agent to It is now settled that a policy of marine

waive may be restricted in a policy and insurance is enforceable in a court of

now is in a large number of policies. 73 admirality. Reed vs. Ins. Co., 95 U.S., 23. To this proceeding on the contract A person not having the power to issue the question was raised in that case, but general policies, but authority to take apnot disposed of, whether a State statute of plications, and refer them to the home limitation would bar the action? It was office for action would be a special agent urged that a State statute of that kind did and he would have no power to waive. not apply in the United States Court unless

63 N. Y., 531. there was a U. S. Statute adopting that of SEC. II. Various Methods of Securing the State. On this point refer to U. S. Rev. Mortgage Loans by Insurance. This may Stat. § 721. Another case is Merchants

assume any one of four forms. Ins. Co. vs. Allen, 121 U, S., 67.

ist. The mortgagee insures in his own FIRE INSURANCE. name, with his own funds.

In this case CHAPTER XVIII.

there is no privity between the insurance SEC. I. D. Warranty. This has become company and the mortgagor. In case of a highly important feature in insurance loss the insurers will on payment be sub

N. Y., 5.


rogated to the position of the mortgagee On the election to rebuild on the part of the by a species of equitable assignment. No Insurers. The inference from this is that defence can be set up by the insurers de- in case of an election by the insurers to pending on the wrongful acts of the mort- rebuild, the damages cannot be measured gagor, since he is a stranger to the whole by rules applicable to the insurance contransaction.

tract, but by those applicable to building 2nd. The mortgagee insures in his own contracts. (23 N. Y., 429; 75 N. Y., 7.) name, but the case differs from the former

CHAPTER XIX. one in the fact that the mortgagor supplies the premium money. In this case the Nature of the Contract of Life Insurmortgagee is a trustee for the mortgagor

This was at one time treated as a and there is no subrogation in favor of the contract of indemnity and applied to the insurers in case of loss.

case of the creditors of William Pitt. See 3rd. The mortgagor takes the insurance Godsall vs. Boldero, 9 East, 72. This in his own

name with a clause in the decision was made by the court of Kings policy as follows: “loss, if any, payable Bench. After many years recognition it to mortgagee as his interest may appear." was overruled by the appellate court, and In this case it is plain that the contract is therefor of a higher nature, in the case of made with the mortgagor and there is no Dalby vs. Ins. Co., 15 C. B., 365. It was subrogation. There is, however, a defect there declared to be in its nature a wager in the security supplied, since the mortga- upon a contingent event, to wit, the time gee is now in privity with the mortgagor of the death of the party insured. This and will be liable to have the same de- view is generally prevalent now in the fences made by the insurers as if the mort- United States. See Insurance Co vs. gagor was seeking to enforce the claim. Schaeffler, 94 U. S., 561; Rawle vs. Ins. Another defect is that if the mortgagor Co., 27 N. Y., 282. It is, however, necshould convey the property insured to a essary that there should be an interest to third person, the policy would be void be insured, in order to bring the case even though the mortgagee had no notice within the class of tolerated wagers in those of such conveyance. To avoid this point, states which have abolished contracts of a special clauses have been devised called wagering nature in general. “mortgagee clauses," which will make SEC. I. In the Construction of the Clause, such a policy valid as to the mortgagee,

" when the Insured dies by his own hand." though void as to the mortgagor. These This clause has been fruitful of decisions usually concede to the insurers in these in cases where the insured has taken his exceptional cases, the right of subrogation. own life, when alleged to be insane. The

4th. The policy may be taken out in leading difference of opinion here is where the mortgagor's name as before and be the insured is conscious of the moral assigned to the mortgagee. This case is

obliquity of the act but at the same time substantially the same as the third form,

is subject to an irresistible impulse to comexcept that there is an assignment of the policy. The third form is in more common

mit it. The infirmity is not in the underuse than the fourth.

standing but in the will. The Supreme As to the construction of apparently

Court of the United States held that if conflicting clauses in a policy, see Harper

under such circumstances the insured vs. Ins. Co., 17 N. Y., 194.

shall take his own life, he did not within

the meaning of the policy die by his own 80 N. Y., 32; Clark vs. Allen, ui R.I., 439. hand. Terry vs. Ins. Co., 15 Wallace, English decisions are to the same effect, 3 580. This view was disapproved in Van Sim. 149; there held that a policy may be zandt vs. Ins. Co., 55 N. Y., 469. The assigned or given away. See also Ames Terry case” was reaffirmed in Ins. Co. vs. Smith, 1 B. & S., 109. Supreme Court vs. Rodell, 95 U. S., 232. The New York of the United States holds the other way; cases admit that if the insane impulse is 104 U. S., 755. caused by disease, the insured does not NOTES ON THE GENERAL RULES OF PRACTICE die by his own hand. See Newton vs. OF THE COURTS OF RECORD OF THE STATE Ins. Co., 76 N. Y., 426. In some policies

OF NEW YORK. we have the clause "that if the insured

Officially Revised. dies by his own hand, sane or insane, the

PROF. GEORGE CHASE. policy shall be void.” Appellate Court All references are to rules as arranged in this State held that these words em in the edition of 1888. brace the case of one who takes his life The fact that the numbering of the rules even in a fit of delirium. Gogorza vs Ins. is changed from time to time must be kept Co., 65 N. Y., 232. There is another im in mind in reading cases decided in portant clause often found in these poli- former years. The table prefixed to Mr. cies to the effect that the policy shall be Hun's edition of the rules shows the numvoid if the insured should die in a viola- bering of the rules at different periods. tion of the laws of any nation or State, etc. Courts having passed rules may consider There are many decisions upon

this point.

them as having the force and binding See Murray Case, 96 N. Y., 614, where it effect of a statute, (108 N. Y., 280); still, is held that where the insured has planned they may, in certain cases, waive the an assault against an individual, where- strict application of their own rules. (80 upon the assaulted party drew a pistol N. Y., 547). And if a rule conflicts with a which it was claimed that he fired acci statute, the rule gives way. (84 N. Y., dentally but killed the insured, that that

284.) was a consequence that might naturally Rule 1. While a failure to comply with be expected from the assault; accordingly a rule which is merely directory may be that the policy was void.

There must,

obviated by allowing the act to be done however, be a relation between the viola nunc pro lunc, this is not so as to mandation of the law and the death. Bradley vs. tory provisions. Hence the Court of Ins. Co., 75 N. Y., 472.

Appeals will not, by allowing the Regents' SEC. III. On the Right of Assignment. certificate to be filed nunc pro lunc, exempt The courts in the various states have an applicant for admission to the bar from reached different conclusions on the point the rule that he must prove that before or whether a policy valid in its inception and within three months after beginning his capable of enforcement can be assigned clerkship he passed the Regents' examito one who has no interest. The better nation. (1o8 N. Y., 28o.) opinion is that it can be assigned as being Rule 2. Notice of entry of judgment property or a chose in action and not a will not limit the time to appeal, unless the contract of indemnity. See Olmsted vs. office address or place of business of the Keyes, 85 N. Y., 593. Of course the as attorney is stated. (78 N. Y., 229; 76 N. signee takes only the rights of the assignor, Y., 325.)

Though the notice of appearance has Rule 7. The “condition referred to the office address of the defendant's attor here is that part of a bond or undertaking ney, yet the answer afterwards served which embodies the true agreement bemust also have it, or the answer may

be re tween the parties. turned by the plaintiff as defective. Entry Rule 1o. In both cases under this rule of judgment by default in such a case will an order of court must be obtained. not be irregular, though the court may, if It is held that a client may discharge his atit sees fit, allow the default to be opened torney arbitrarily without any cause at any on payment of motion costs. (12 Civ.

time, and be liable to pay him only for the Pro R., 426 ; see ii Civ. Pro. R., 304, and services which he has rendered up to the 452.)

time of his discharge. (93 N. Y., 529.) In general, however, the omission of Still a party cannot change his attorney the attorney's address or place of business without leave of the court. The court is a mere irregularity, and does not neces will grant this leave upon the party's resarily vitiate either the paper or its service. quest, but in so doing will consult the The attorney served may either return the rights of the attorney, and will not allow paper or move to set it aside ; but if he ac the change until the just claims of the atcepts and retains it without objection, and torney are discharged or secured. (14 admits service thereof, this will be deemed Abb. Pr., 336; 67 Barb., 446; 13 How. Pr., a waiver of the irregularity. (101 N. Y., 250; 49 How. Pr., 138; see also Rule 20 of 289 ; see 100 N. Y., 86; 101 N. Y., 610.) the Superior Court.

Where the post-office address was omit Rule 14. The court in granting a disted from the notice of entry of an interlocu covery of books, papers, etc., is not limited tory judgment, but the attorney upon to applications made for the purpose of whom it was served admitted “due and framing a pleading, but has power to diproper service," Held, that the irregularity rect such discovery after issue joined, to was waived, and that the notice was ef enable the applicant to apply for trial. (1 fectual to limit the time for appealing. (38 Civ. Pro. R., 169.) Hun, 531.)

Rule 19 Where the answer and its veriRule 3. It is not sufficient for the order fication, taken together, make more than to state that the motion was made upon

two folios, but neither by itself contains “all the papers and proceedings in the two folios, no folioing is required. (11 action." (85 N. Y., 637.)

Civ. Pro. R., 452.)

Rule 22. Rule 5, T 2.

See 36 Hun, 70; 48 Hun, 79. The other party cannot treat an attorney's bail as a nullity when

Rule 23. Such an affidavit has been held such bail is given, but must except thereto,

necessary on a motion by a defendant to whereupon it will be rejected. (4 Bosw.,

have a complaint made more definite and

certain. (1 Civ. Pro. R., 156.) 632.)

Before the adoption of this rule it was An attorney who has retired from prac

the practice to require a new affidavit of tice for some time may execute an under

merits to be made every time the defendtaking. (15 J. & Sp. 366.)

ant was required to swear to merits, and So if he has entirely abandoned the pro such an affidavit used for one purpose fession and engaged in some other occu could not afterwards be used for a differpation. (8 Civ. Pro. Rep., 420.)

ent purpose. (10 Daly, 32.)

Rule 24 If a defendant procures an ex- order therefore be made within ten days tension of time to plead, without reserving after issue joined. (44 Hun, 181.) any right to move to correct the com- Rule 32, s 2. In case of trial by the court, plaint, it admits that the complaint is in a service of a copy of the judgment and form to require an answer, and waives ob- notice of entry thereof is not sufficient to jections to the complaint. (36 Hun, 70.) limit the time in which to prepare the

Rule 25. Failure to observe this rule is case.” Service of a copy of the decision is a mere irregularity which authorizes but necessary, and if this is not served, the apdoes not compel the court to refuse to pellant is not in default for failure to pregrant the order or to vacate it after it has pare and serve his case," and his appeal been granted. (24 Hun, 353; 80 N. Y., will not be dismissed therefor. (103 N. 547.)

Y., 658; 80 N. Y., 146; $ 994 C. Civ. P.) Although a motion may be made to va- Last [. Since the adoption of section cate an order of arrest because plaintiff's 1023 of the Code and the amendment to affidavit did not state whether any pre- this rule, the report of a referee cannot be vious application had been made, such sent back to him with instructions to make motion must be made with diligence, or it additional findings of fact or conclusions will not be granted.

motion to vacate of law. It was felt that after an action on this ground cannot be made at any had been once decided by the court or time before final judgment, though that referee, it was dangerous to permit an is the general rule. It is too late if made attempt to modify the decision by new after the action is ready for trial. (66 findings or new conclusions, but that the How. Pr., 395.)

report or decision was like the verdict of See 28 Hun, 320.

a jury after they had been discharged. Rule 30, 2. In general, the court has (34 Hun, 582 ; 2 Civ. Pro. R., 185.) no power to confirm the referee's report, The former rule that the court or referee under this rule, until it has been filed in the might pass upon questions of fact prooffice of the clerk for eight days. But this posed by the party at the time of the settledoes not apply to references made to aid ment of the “case” is now abolished. (84 the conscience of the court in determining N. Y., 284; 33 Hun, 536.) questions pending before it; for in such Rule 35, 2. This regulation is strictly a case the report is in no way binding on followed. (30 Hun, 214.) the court, but the court may disregard it

Rule 36, 1 1. Defendant may move and draw its own conclusions from the

under § 822 of the Code for general unevid nce. (45 Hun, 38; see also 10 Daly,

reasonable neglect to proceed in the cause, Il; 30 Hun, 528.)

or under this rule for the specific neglect Rule 31. This rule applies only to the

therein mentioned. (28 Hun, 76.) And framing of issues in an equity case for

this is true though the defendant has not It does not govern actions for

noticed the case for trial and though the divorce on the ground of adultery, and the

cause has been marked “reserved generframing of issues in such actions under section 970 of the code is a matter of ally,” S. C. (See 28 Hun, 76 ; 5 Civ. Pro.

R., 66 ; 4 id., 201.) right, not a matter of discretion with the court, and is not controlled by the limita- Rule 37, 1 3. The reason for this subtion of this rule that application for an division is shown in 7 Abb. Pr., 76.

Rule 27.

jury trial.

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