Hartford Fire Insurance v. Dickinson — 57 N.Y. St. Rep. 261

Majority

p. 261

The Hartford Fire Insurance Co., App’lt, v. Robert H. M. Dickinson et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Release—Payment by third person.. 11

Where, in an action by an insurance company against persons who had formerly been its agents, to recover premiums alleged to have been col

p. 262

lected and not paid over, the wife of one of the defendants testified that she made arrangements with the plaintiff to continue the agency, and that, under such.arrangements, she settled plaintiff’s claim, partly in cash and partly hy giving her notes, and that she was authorized to act in the mat- ' ter for her husband, the evidence is sufficient to sustain a finding that such payment hy the wife was in satisfaction of plaintiff’s claim.

Appeal from a judgment entered upon the report of a referee.

Action by the Hartford Fire Insurance Company against Eobert H. M. Dickinson and James H. Blauvelt to recover $611.51 alleged to have been collected by defendants as agents for plaintiffs. The referee found that, prior to the commencement of the action, plaintiff had received from Catharine M. Blauvelt, wife of defendant H M. Blauvelt, notes and cash to the amount of the claim ; that at time of said payment said Catharine M. Blauvelt held a power of attorney to transact all business for her said husband, which power of attorney was made and, executed by her said husband; that the payment so made by her was intended by her to be in full satisfaction and discharge of all claims of plaintiff against defendants,- and was received by plaintiff in full satisfaction and discharge of all its claims against defendants. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

George W. Weiant, for app’lt; Snider & Hopper, for resp’ts.

We think the answer in this case sufficiently alleged payment .of the plaintiff’s claim, in the 9th, 11th and 13th paragraphs thereof, and that the findings of the referee are sustained by the evidence. The finding is that Mrs. Blauvelt, as the agent of James H. Blauvelt, paid the claim in suit, and the same was received by the plaintiff in satisfaction thereof. The finding is explicit that the intention of the parties was to have the payment discharge the obligation. All the surrounding circumstances corroborate this theory. Mrs. Blauvelt and Polhemus succeeded to the business, and met the plaintiff to perfect the arrangements to go on with the business. Mrs. Blauvelt testifies she was authorized to act for her husband, who had the right to pay the debt, and that she did pay a part of it, and Polhemus the balance. There is no denial of the testimony given by Mrs. Blauvelt and defendant Dickinson, and it is evident from the conduct of the parties that a full settlement was made at the time the business was turned over to the new firm of Blauvelt & Go. _ _

_ _ There are many exceptions taken, but none of sufficient merit to reverse the judgment The result is just, and the judgment must be affirmed, with costs.

Dykman, J., concurs.

The facts are not disputed. The defendant and James H. Blauvelt were partners in business at Nyack, Eockland county, as insurance agents. The company failed, owing the plaintiff a considerable sum for premiums collected. The wife of Blauvelt applied to the plaintiff to become its agent, and agreed, in consideration of being appointed, to pay the

Dissent

p. 263

firm debt. The company agreed to and did appoint her agent. She paid a portion of the debt in cash, and gave her note for the remainder, which she has not paid. The firm had no connection with the transaction, and there was no agreement, even, that the wife’s note should be accepted in satisfaction of the firm’s debt The referee, on these facts erroneously found that the firm debt was paid by the unpaid note. There was no payment,—probably, not even so far as the cash payment by the wife. The debt was not discharged. Madison Square Bank v. Pierce, 137 N. Y., 444 ; 51 St. Rep., 175 . The judgment should be reversed and a new trial granted, costs to abide event