Carter v. United Insurance — 1 Johns. Ch. 463

Majority

p. 463

Carter and Moore against The United Insurance Company of New-York.

June 28th.

Headnote

A bill filed to recover the amount of a total loss on a policy of insurance, stating no other ground of equitable relief, than that the policy had been assigned to the plaintiffs by the insurers, in whose name it had been effected, and that the insurers refused to pay, was, on demurrer, dismissed, with costs, the plaintiff having adequate remedy at law.

THE bill was filed by the plaintiffs, as assignees of a policy of insurance, underwritten by the defendants, for William Titus and George Gibbs, on which the plaintiffs claimed payment for a total loss. The insurance was on 500 barrels of flour from Newport to St. Jago de Cuba, on board the Spanish brig Patriota, which was captured by a Carthagena privateer. On the 21st of December, 1814, the policy was assigned by Titus and Gibbs to the plaintiffs, in trust, for themselves and other creditors of Titus and Gibbs. The bill charged that the defendants refused to pay the loss, alleging, among other things, that the plaintiffs had no title to the property insured, which, in fact, belonged to one /., a Spaniard, and not to Titus and Gibbs. The bill prayed that the defendants might answer the matter charged in the bill, and be compelled to pay the plaintiffs the amount insured, as for a total loss.

To this bill the defendants demurred on the following grounds: That it appeared by the bill that the plaintiffs’ demand, or cause of action, was properly cognizable in a court of law; as it is not alleged that Titus and Gibbs refused to let the plaintiffs make use of their names, in a suit at law; or that they are, in any way, hindered from prosecuting at law; or that they stood in need of any discovery to aid them in such action.

p. 464

S. Jones, jun., in support of the demurrer.

He cited Marsh, on Ins. 679. 4 Bro. P. C. (Tomlin’s edit.) 436. Mosely’s Rep. 83. 1 Atk. 457.

T. A. Emmet, contra.

The demand is properly cognizable at law, and there is no good reason for coming into this court to recover on the contract of insurance. The plaintiffs are entitled to make use of the names of Gibbs and Titus, the original assured, in the, suit at law ; and the nominal plaintiffs would not be permitted to defeat or prejudice the right of action. It may be said here, as was said by the Chancellor, in the analogous caseof Dhegetoft v. The London Assurance Company, (Mosely, 83.,) that, at this rate, all policies of insurance would be tried in this court. -In that case the policy stood in the name of a nominal trustee ; but that was not deemed sufficient to change the jurisdiction ; and the demurrer to the bill was allowed, and the decree was afterwards affirmed in parliament. (3 Bro. P. C. 525.) The bill, in this case, states no special ground for equitable relief; nor is any discovery soughtwhich requires an answer»

Bill dismissed, with costs.