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Mayor v. Exchange Fire Insurance

3 Abb. Ct. App. 261 Court N.Y. English

Delivered by Porter, J.

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MAYOR, &c. OF NEW YORK v. EXCHANGE FIRE INSURANCE COMPANY.
September, 1867.

Headnote

Affirming 9 Bosw. 434 .
Attorneys appearing for a municipal corporation will be presumed to be duly authorized, although such corporation has, by law, an official counsel, and a law department charged with the control of all law business in which the city is interested.[4]
The city leased land to an association, whereon to erect a building for an industrial exhibition, and the lease bound the lessees to surrender, &e., at the end of the term, and did not reserve a right to remove the building. Held, that ón the expiration of the term without a removal of the building, the latter became the property of the lessors, and they, therefore, had an insurable interest therein.
In an action op a policy of fire insurance, where the defense is that the structure was used for purposes, and contained things, classed as extra hazardous, parol evidence is admissible to prove that the insurers, before issuing the policy, had for a long time insured the structure for the benefit of its prior tenants who had occupied it for the same purposes, and that the insurers knew the structure and its uses.[2]
The Mayor, &c. of the city of New York sued the Brooklyn Fire Insurance Company, in the New York superior court, on a fire policy issued by the defendants to the plaintiffs, in June,
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1858, insuring the Crystal Palace building and its contents, which were destroyed by fire in October of the same year.
At the trial, defendants objected that the attorney of record for the plaintiffs was in no way connected with their law department, and relied on the following provision of the charter: “ There shall be an executive department [of the city of New York] known as. the law department, which shall have the charge of and conduct all the law business of the corporation, and of the departments thereof, and all other law business in which the city shall be interested, when so ordered by the corporation, .... and the chief officer thereof shall be called the counsel to the corporation. There shall be a bureau in this department the chief officer of which shall be called the corporation attorney.” 1 L. 1857 , p. 882, c. 466, § 26.
The court overruled the objection.
The following facts were proved. In 1852 the city leased the vacant ground of Reservoir-square, belonging to them, to Edward Riddle and his associates, for a term not exceeding five years, at a nominal rent, for the erection of a building of iron and glass, for an industrial exhibition. The lessees covenanted to erect the building; to charge only a limited admission fee, and at the expiration of the term to surrender the demised premises in as good state and condition as reasonable use and wear thereof would permit, damages by the elements excepted. The exhibition was held.
IJpon the expiration of the term the building erected pursuant to the lease remained. It was a costly structure, on solid foundations and of a permanent character. The city subsequently took possession; and procured the policy in suit to be issued. The policy covered the building then known as the Crystal Palace, together with the furniture and fixtures therein lately owned by the Association for the Exhibition of the Industry of all Nations; and contained the usual clauses declaring the policy void if extra hazardous goods or occupations were used without the company’s consent indorsed. The city then leased the building to the “ American Institute,” and they held a similar exhibition in it, during which the loss occurred.
The defendants relied on the objection that the city were not owners of the building, and on the fact that the use of the
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building for an exhibition involved the operation of machinery and the presence of quantities of extra-hazardous articles, contrary to the conditions of the policy.
The plaintiffs were permitted, under exception, to put in evidence policies previously issued by the defendants to the association or its receiver, and to prove that the exhibition maintained at the time of the loss was substantially the same as those maintained during the life of the former policies. Plaintiffs had a verdict.
The superior court affirmed the judgment thereon, on the same grounds as those assigned in the following opinion. Defendants appealed.
J. W. Edmonds, for defendants, appellants;
Cited 1 L. 1857 , p. 882, § 26 ; c. 466, §§ 18, 26; Campbell v. Bristol, 19 Wend. 101 ; Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 636 ; King of Spain v. Oliver, 2 Wash. C. Ct. 429; Gillespie’s Case, 3 Yerg. (Term.) 325 ; Allen v. Green, 1 Bailey (S. G.) 448; McKiernan v. Patrick, 4 How. (Miss.) 333; Westy. Houston, 3 Harr. (Del.) 16; Carterell y. Menifee, 2 Pike (Ark.) 355; Maires v. Maires, 23 Eng. L. & Eg. 221; Fry v. Calhoun Co., 14 Ill. 132 ; Broom Leg. Max. 384; Story on Ag. §§ 13,14, 24; 2 Kent Com. 633; Paley Ag. 175; Kellogg v. Norris, 5 Eng. (Ark.) 18; Radcliff v. Baird, 14 Tex. 43 ; Hitchcock v. McGetru, 7 Port. (Ala.) 557 ; Johnson v. Cunningham, 1 Ala. 249 ; Tomlin L. Diet. tit. “Attorney;” 13 Edw. 1 .; 2 Westm.; 13 How. Pr. 250 ; Tates v. Faukelton, Doug. 628; Ramson v. Mayor, &c. of N. Y., 24 Barb. 226 ; Lynch v. Livingston, 8 Id. 463; affirmed in 6 N. Y. (2 Seld.) 422; Kent v. Hudson River R. R. Co., 22 Barb. 278 ; 2 R. S. 3 ed. 502, §§ 83, 84; 466, 504, § 99; Ordinance, §§ 1, 9, 10, 12, 13, 15, 18, 24; Pars, on Mer. L. 408, 494, 507; Howard v. Albany Ins. Co., 3 Den. 301 ; Murdock v. Chenango Ins. Co., 2 N. Y. (2 Comst.) 210; Carter v. Rockett, 8 Paige, 437; Niblo v. Am. Ins. Co., 4 Sandf. 551 ; Laurent v. Chatham Ins. Co., 1 Hall, 44 ; 2 Smith L. Cas. 243, 250, 258, 281, and cases cited; Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 Mees. & W. 14; Poole’s Case, 1 Salk. 368; Prince v. Case, 10 Conn. 378 ; Parker v. Redfield, Id. 496 ; King v.
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Wilcomb, 7 Barb. 265 ; Smith v. Benson, 1 Hill, 176 ; Russell v. Richards, 1 Fairf. 429; Godard v. Gould, 14 Barb. 662 ; Mason v. Fenn, 13 Ill. 525 ; Whiting v. Brastow, 4 Picio. 310; Wansborough v. Maton, 4 Ad. & E. 884; Lawrence v. Kemp, 1 Duer, 365 ; Holmes v. Tremper, 20 Johns. 28 ; Doak v. Wis-well, 88 Me. 569 ; Fuller v. Taylor, 37 Id. 519 ; Mott v. Palmer, 1 N. Y. (1 Comst.) 564; Smith v. Jenks, 1 Den. 580 ; reversed in 3 Id. 592 ; 1 N. Y. (1 Comst.) 90; Van Ness v. Pacard, 2 Pet. 145 ; Dubois v. Kelly, 10 Barb. 496 ; Pemberton v. King, 2 Den. 376 ; Preston v. Briggs, 15 Vt. 124 ; Curtis v. Hoyt, 19 Conn. 154 ; Ombony v. Jones, 19 N. Y. 238 ; Grady on Fix. 183; 1 Greenl. Ev. §§ 175, 331; Edw. on Rec. 4; Fitzpatrick v. Eyre, 1 Molloy, 471; 2 Story Eq. Jur. § 833, a ; Albany City Bank v. Schermerhorn, 9 Paige, 372; Parker v. Browning, 8 Id. 388 ; 2 Parle-on Ins. 46, 975; Hobby v. Dana, 17 Barb. 111 ; Sillem v. Thornton, 26 Eng. L. & Eq. 238 ; Mead v. N. W. Ins. Co., 7 N. Y. (3 Seld.) 530; 7 Gray, 257 ; 3 Id. 583; Stokes v. Cox, 37 Eng. L. & Eq. 561; Wall v. E. Riv. Ins. Co., 3 Duer, 264 ; 30 Penn. 315 ; 3 Dutch. 134; 17 Shep. 273; 2 Pars, on Mer. R. 504; 1 Dutch. 78; Westfall v. H. R. Ins. Co., 12 N. Y. (2 Kern.) 289; Glen v. Lewis, 20. Eng. L. & Eq. 264; S. C., 8 Exch. 607; 1 Story Eq. Jur. §§ 152, 158; Wood v. Dwarris, 11 Exch. 493; Wheelton v. Hardisty, 8 Ell. & B. 232; Lyman v. H. S. Ins. Co., 2 Johns. Ch. 630 ;[3] Gillespie v. Moon, 2 Id. 585; Keisselbrack v. Livingston, 4 Id. 144; Chaffee v, Cattaraugus Ins. Co., 18 N. Y. 384 ; Brown v. Same, Id. 390 ; Plumb v. Same, Id. 394 ; Lamalt v. Hudson R. Ins. Co., 17 Id. note, 199; 1 Parke on Ins. 46; Westfall v. Hudson R. Ins. Co., 2 Duer, 490 ;[4] Williams v. H. Eng. Mut., 31 Me. 119 ; Blackett v. Royal Ass. Co., 1 C. & J. 144; Gabay v. Lloyd, 3 Barn. & C. 79; Robertson v. French, 4 East, 134; 2 Greenl. Ev. 377; Illinois Mut. v. O’Heil, 13 Ill. 89 ; Mead v. N. W. Ins. Co., 3 Sold. 534; Macomber v. Howard Ins. Co., 7 Gray, 157 ; State Mut. v. Arthur, 30 Penn. 315 .
Daniel Lord, for plaintiffs, respondents;
Cited Townsend v. N. W. Ins. Co., 18 N. Y. 174 ; O’Niel v. Buffalo Ins. Co., 3 Id 116; Harper v. Albany Mut. Ins. Co., 17 Id. 197 ; Grant v..
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Howard Ins. Co., 5 Hill, 13 ,15; Potter v. Ontario & Liv. Mut. Ins. Co., Id. 149 ; Davy v. Hallett, 3 Cai. 11 ; Anderson v. Fitzgerald, 4 H. of L. Cas. 484; Notman v. Anchor Ins. Co., 41. Scott N. S. 79, 679 ; Hoffman v. Ætna Ins. Co., 31 N. Y. 413 .
John W. Edmonds, for the appellants.

By the Court.

There is no force in the objection, that the attorneys who appear for the plaintiffs are not connected with the city law department. The provision in the amended charter, imposing on that department the duty of conducting all the law business of' the corporation, yras not intended to disable the city from prosecuting or defending suits without the consent of the “ corporation counsel,” nor to deprive it of the ordinary right of suitors to procure such additional professional aid as the circumstances of particular cases might require. In this case it appears, affirmatively, that the action was brought with assent of the corporation counsel; but if there had been no proof on the subject, the authority of the attorneys would be presumed.

The objection, that the plaintiffs had no insurable interest, is equally unfounded. The Crystal Palace building, as well as the land on which it stood, belonged to the corporation. There is nothing in the terms of the expired lease, or in the evidence introduced by the defendants, to give color to the claim they set up in behalf of persons, known or unknown, as an excuse for refusing payment, while they retain the premium of insurance.

The judge was right in admitting proof that the defendants had insured the property for years, and knew the purpose for which the structure was erected, the manner in which it was occupied, the general character of its contents, and the nature and extent of the risk. These extrinsic facts were appropriate, as they tended to aid the court in applying the descriptive language of the policy to the actual subject of insurance, and in giving effect to the words of the contract in the precise sense in which they were understood and employed by the parties. Bidwell v. Northwestern Insurance Company, 24 N. Y. 302 ;

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Agawam Bank v. Strever, 18 Id. 502, 509; Blossom v. Griffin 13 Id. 569, 574; French v. Carhart, 1 Id. 96, 102.

When the policy is read in the light of the antecedent and surrounding circumstances, the import of the written language is in harmony with the manifest intention of the parties. The contract covered, and was designe^ to cover, the hazards incident to the occupation of the building, for the purpose of exhibiting to the public the general processes and results of human skill, in each of the various departments of active and practical industry. The premium was adjusted by the insurers with reference to the nature of the risk; and they cannot justly complain that the property was dedicated to the uses contemplated by them as well as the assured, and embraced in the descriptive terms of the policy. Harper v. Albany Mut. Ins. Co., 17 N. Y. 194 , 197; Townsend v. Northwestern Ins. Co., 18 Id. 168,171; Hoffman v. Ætna Ins. Co., 32 Id. 405.

Other questions were raised on the argument, but we think none of them call for particular discussion. The rulings of the judge were correct, and the liability of the defendants is clear.

The judgment should be affirmed, with costs.

All the judges concurred.

Judgment affirmed, with costs.

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