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of insurance in the Life Associa- that defendants, though requested, tion of America ; H. to collect had paid no part of the deficiency. premiums and remit them to There was no denial in the answer plaintiff after deducting his com- of any of these facts ; defendants missions on the first day of every simply alleged that they had no month, making a report at that knowledge or information suffitime, and to regard and treat all cient to form a belief as to whether the premiums that may at any or not H. was at the time the action time come to his hands, sacredly, was commenced indebted to plainas trust funds," and not to use tiff “in the sum mentioned in the them, or permit them to be used, complaint or in any other sum, for any purpose except to remit and therefore deny the same.” them as aforesaid.” The com- James M. Humphrey, for applts. plaint further alleged the execil

John G. Milburn, for respt. tion and delivery of a bond, re

Held, That defendants' answer quired by the terms of the contract, was merely a denial of a legal consigned by H. and also by the de- clusion and put in issue no fact fendants B. and S., as sureties, alleged. conditioned for the faithful per- Goodyear v. De la Vergne, 10 formance by H. of his duties as Hun, 537; Albro v. Figuera, 60 general agent "in accordance with N. Y., 630, distinguished. the terms of the contract of ap- The referee found as a fact that pointment,” and on the first day after the commencement of plainof every month account for and tiff's action against H. an order of pay over all moneys in his hands. arrest was made in that action and H.'s employment was, by the terms 1. was arrested thereon and comof the contract, to continue for mitted to jail ; that while H. was three years unless terminated by in jail plaintiff proposed that if he mutual consent. The complaint would give an offer of judgment then alleged that between the date for his demand in that action he of the contract and April 12, 1875, would release him from jail ; that H. collected a large sum for which such offer of judgment was given he did not account and had not by H., and thereupon plaintiff repaid over upon request and ac- leased him from jail. The referee cording to the terms of the con- held that this did not operate to tract, "of all of which the defend discharge the sureties. To this ants have had due notice." It was they excepted, and their counsel then averred that on May 7, 1875, now argues that the order of plaintiff began an action against arrest with the arrest was a secu . H., after notifying defendants of rity for the satisfaction of plainhis intention to do so, and of H.'s tiff's judgment to which security default, and in the following Oc- the sureties were entitled to be tober recovered judgment and subrogated, and the release of H. issued execution which was re- from imprisonment impaired their turned wholly unsatisfied, and rights.

rights. The sureties had never requested plaintiff to sue, or hav- , that the offer did not aver that the ing sued to arrest H. and continue liability of the sureties had been his imprisonment.

increased beyond the one addiHeld, That the question raised tional default of which they took stands only upon the bare relation the risk.

. of the parties as principal and Held, That the court erred in surety. Flowing from that rela- rejecting the evidence offered; that tion alone plaintiff was not bound if the offer was very general the to sue H. or to arrest or imprison objection to it was of the same him. The omission to do either character, and as the offer coninvaded no right of the sureties. tained the elements of a possible 28 How. Pr., 209; 14. Abb. Pr., defense it should not be construed 428.

too rigidly for the purpose of jusDefendants offered to prove that tifying its rejection. after a part of the indebtedness A surety bound for the fidelity claimed by plaintiff had accrued, and honesty of his principal, and and after H. had failed to perform so for an indefinite and contingent his contract, the sureties notified liability, and not for a sum fixed plaintiff that they desired to with and certain to become due, may draw their bond and not be lia- revoke and end his future liability ble for any business that H. should in either of two cases, viz.: First, do after that;" that to induce where the guaranteed contract has them so to remain liable plaintiff no definite time

no definite time to run, and, promised to require H. “to ac- Second, where it has such definite count monthly” and would see time, but the principal has so vio"that he did not get behind,'' but lated it and is so in default that if he did “he would immediately the creditor may safely and law. stop his business,” notify the fully terminate it on account of sureties and tell them the amount the breach. 45 N.Y., 691 ; 58 id., of the default; that in reliance on 541; L. R., 13 Eq. Cas., 450 ; L. this promise and condition the R., 7 Q. B., 666; L. R., 8 Exch., sureties suffered their liability to 73. When the person employed remain, and that plaintiff did not commits an act of dishonesty and perform the condition, but suffered is unfaithful to his trust the emthe liability to increase until the ployer may end the contract and whole sum now claimed had ac- the trust for his own protection, crued. This evidence was rejected and what he may do and ought to as immaterial and the sureties ex- do for his own safety the surety cepted. It is claimed that no such may require to be done for his. defense was pleaded. No objec- Judgment of General Term,

, tion was made on that ground. It affirming judgment for plaintiff on is also claimed that the offer did report of referee, reversed and new not allege that the sureties knew trial granted. of H.'s default when they had Opinion by Finch, J.

All contheir interview with plaintiff, and 'cur, except Earl, J., not voting.


INSURANCE COMPANIES. real estate as should be purchased PUBLICATION.

at sales upon judgments obtained

on mortgages for security for N. Y. SUPREME COURT. GENERAL loans. But the same law also proTERM. SECOND DEPT.

vided that all real estate so acThe Home Ins. Co., pl.ff., v. quired which should not be necesMary Head, deft.

sary for the company in the trans

action of its business should be Decided Sept., 1883.

sold and disposed of within five The failure of an insurance company to pro. years after the acquisition of title cure a certificate of the Superintendent of

thereto, unless the certificate of the Insurance Dept. under Chap. 466, Laws the Comptroller, for whom the of 1853, within five years after the acqui. Superintendent of the Ins. Dept. sition of title to real estate will not invalid.

is now substituted. Chap. 366, ate its title. To constitute a valid service by publication Laws of 1859, that the interest of on an infant it is not necessary that the the company would suffer papers should also be served on the father, terially by a forced sale tủereof mother or guardian.

should be obtained. The act does Submission of controversy with-not assume to divest the title of out action.

the company or suspend its powPlaintiff contracted to sell cer- er of sale after that time. It tain real estate to defendant, who simply imposes on the company a declines to perform, as she is ap- duty to sell within five years or prehensive of defects in plaintiff's procure the certificate. No penalty title.

is attached for disobedience, and Plaintiff foreclosed a mortgage no negative words forbidding or on the premises in question and prohibiting the sale thereof are upon the sale they were bought used, and as neither such penalty in for and were afterwards con- nor prohibition are expressly imveyed to plaintiff in Dec., 1876, posed or created they cannot be and it has held the same from raised by implication. 70 N. Y., that time without the certificate 536. The title to this property of the Superintendent of the Ins. was absolute in the company, and Dept. until April 12, 1883, when a its power of alienation was withproper certificate was obtained. It out limit.

out limit. A power of sale beis claimed that the failure to ob. stowed upon trustees or other tain a certificate for five years in parties may be limited in its exervalidated plaintiff's title.

cise by time or events, but no Barney & Cowman, for plfi. such limitation can be imposed by B.S. Morehouse, for deft.

the legislature on the owner. Such Held, That plaintiff's title was an attempt would be a plain usurunaffected by the omission to pro- pation of the right of property. cure the certificate. Chap. 466, The intention of this law was, Laws of 1853, made it lawful for doubtless, to impose on the cominsurance companies to hold such panies a duty to dispose of its real estate not necessary for the in the effect and character of the transaction of its business as soon judgment. In such case the deafter its acquisition as was con- fendant, or her representatives, on sistent with its interests, the ob- good cause shown, may be allowed ject being to prevent the accumu- to defend within one year after lation of land by companies or. notice of judgment, and within ganized for the purpose of insur- seven years after its rendition, on ance.

such terms as may be just. The The summons and complaint in practice prescribed was followed the foreclosure action was served strictly, and the judgment obon one of the defendants, a non- tained was regular. No defect resident infant under 14 years of exists in the title. age, by publication in two news- Judgment ordered for plaintiff papers and deposit of a copy in for specific performance. the postoffice, directed to said de

Opinion by Dykman, J.; Barfendant and prepaid. No copy nard, P.J., and Pratt, J., concur. was sent to her father, mother, or guardian, and no personal service was made-the service by mail be- REFERENCE. MISTAKE. ing the only service made or at

LACHES. tempted. A guardian ad lilem N. Y. SUPREME COURT. GENERAL was regularly appointed for the

TERM. FOURTH DEPT. infant, and put in the usual an

Oris Knapp, admr., respt., v. Held, That the Court acquired Jeremiah Fowler, applt. jurisdiction over said defendant; Decided Oct., 1883. that $ 135, Code Pro., contains no

A referee has co-extensive power with the requirement that the papers shall

court to allow amendments of a pleading. be sent to any person other than Contributory negligence will not defeat an the infant in case of publication, action based on misrepresentation and misand that there is no reason why

take. they should be. No distinction is Appeal from judgment on refermade in this section between in- ee's report. fants and adults, and it follows

Action to rescind a conveyance that a strict pursuance of the sta- of real estate made by plaintiff's tute'is sufficient to confer juris intestate to defendant. The action diction of either class of persons. was begun by plaintiff's intestate, It is within the competency of the and he having died since the trial legislature to prescribe the mode the present plaintiff has been subof acquiring jurisdiction of the per- stituted. The real estate was sold son, and one mode is by publica- January 18, 1881, at the price of tion. The reason why the same $3,000, and the vendor took in particularity is not required where payment a bond and mortgage exthe infant is served by pub-ecuted to defendant by B. for lication and deposit is to be found $3,000, with interest, on which


was then unpaid the whole princi- | eree heard further proofs, and pal sum and some interest, for made his report, by which he which interest the intestate gave found a mutual mistake as alleged his note to defendant, which he in the amended complaint, and afterwards paid. The original held that plaintiff was entitled to complaint alleged that intestate a judgment of rescission. From was induced to take the securities that judgment defendant appeals. by certain false representations Defendant testified that he supfraudulently made by defendant posed the mortgage was - firstrespecting the pecuniary responsi- class ;” that he "traded on that bility of the mortgagor, and the basis," and that he and plaintiff property owned by him, and the "had the same idea about it." value of the property mortgaged. John Cunneen, for applt. The referee found the misrepresen. George Bullard, for respt. tations as alleged, but instead of Held, That the referee had fraud he found a mutual mistake power to allow the amendment. of facts, and on that ground held His power in that respect was cothat the intestate was entitled to a extensive with that of the court, rescission. He reported that plain-Code Civ. Proc., § 1018, and the tiff was entitled to amend his com- court may allow any amendment plaint by conforming it to the of a pleading, by conforming it to facts found, upon terms, provided the proof, which does not change that on application to the court, substantially the claim or defence. on notice, such amendment should Id., $ 723. The case is eminently be confirmed, in which case plain: one for the exercise of the power tiff should then be entitled to en- of amendment. 4 Lans., 41. The ter judgment rescinding the sale, old chancery rules on this pracon the terms stated in the report. tice, 4 Johns. Ch., 363; 2 Barb. Thereupon plaintiff moved at Spe- Ch., 395, are done away; and the cial Term to confirm the report and matter is one of discretion within for leave to amend. The motion

The motion the limits prescribed by the Code. to confirm was denied, but the Appellant insists that the inmotion to amend was granted, and testate was precluded from recova new trial was ordered before an ering by his negligence in not exother referee. Defendant appealed amining the records of the County from that order, and the General Clerk's office which showed that Term reversed it and sent the case an execution against B. had been back to the referee to determine returned unsatisfied a few months the same unconditionally, and to before the sale. This position is order such judgment as he should not well taken. 44 N. Y., 525; 45 deem proper, after further hear- Barb., 478, affd. by Court of Aping. 26 Hun, 200. Accordingly, peals, May, 1870; 28 N. Y., 310; the parties voluntarily appeared 77 id., 226; 87 id., 40. before the referee, who permitted Penny v. Martin, 4 Johns. Ch., plaintiff to amend. Then the ref 566; Marvin v. Bennett, 26 Wend.,

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