Ehlen v. Rutgers Fire Insurance — 15 N.Y. Super. Ct. 482

Majority

p. 482

Joseph Ehlen, Plaintiff and Respondent, v. The Rutgers Fire Insurance Co., Defendants and Appellants.

Headnote

1. When, in an action upon a policy of insurance against loss or damage by fire, , the answer admits a- loss, but not to the amount claimed, and sets up grounds of defence, and a reference is ordered, “ only to ascertain and determine the amount of any loss sustained by the plaintiff, for the recovery of which such action is brought,” and such referee executes the order and reports the amount of such loss, and, on a subsequent trial of the action, his report Is read in evidence without objection, and a verdict passes for the plaintiff; the defendant, on an appeal from the judgment, cannot review the accuracy of .the referee's decision, as to the amount of such loss, nor in respect to the admission or rejection of evidence, on the proceedings before him, as such referee.

2. It seems that the report might have been excepted to, and reviewed on a special motion.

(Rule 32, of the Rules adopted in August, 1858, prescribes the mode of reviewing such a report.)

(Before Hoffman and Pierrepont, J, J.)

Heard, January 26;

decided, February 6, 1858.)

The plaintiff brings this action upon a policy of insurance dated the 29th of September, 1854, by which the defendants insured the plaintiff against loss or damage by fire, in respect to certain property .described in the policy. The complaint states the execution and delivery of the policy, its date and terms, and alleges a loss by fire, the performance by the plaintiff of all. the conditions, on his part, contained in the policy, and prays judgment for $600, the whole sum insured, with interest and costs.

The answer, among other things, admitted a loss, but alleged that it did not exceed $40. There was served, with the answer, a written offer, that the plaintiff might take judgment for $825 and costs.

The action being at issue, it was, by an order of the Court, dated the 15th of December, 1855, referred to A. J. Perry, Esq., as sole referee, “ only to ascertain and determine the amount of any loss sustained by the plaintiff, for the recovery of which this action is brought.”

The referee made a report, dated the 2d of August, 1856, which

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contained the testimony taken, and proceedings had before him on the reference, and in said report, reported, “ that 1 the amount of the loss sustained’ by the plaintiff, for the recovery of which this action is brought, is the sum of four hundred and one dollars and seventy-four cents.”

The action was tried on the 11th of February, 1857, before Mr. Justice Woodruff and a jury. On the trial, it was admitted, that a fire occurred, as alleged in the complaint, and that the requisite preliminary proofs were furnished in due season. The plaintiff then read, in evidence, the application for an order of reference; the order of reference to Mr. Perry, and his report as such referee. No objection was made to the reception of either of these items of evidence, to establish the amount which the plaintiff was entitled to recover, if he was entitled to any recovery herein.

The defendants then introduced witnesses to establish certain grounds of defence, stated in their answer, which, if established, would show that the defendant was not entitled to recover at all, under the policy.

The printed case, after stating the proceedings had, and evidence given on the trial, adds, “ that the case was then submitted to the jury, who found a verdict for the plaintiff for the sum of $457.98, (amount of report of referee and interest,) to set aside which verdict this case was made.”

The case contains no requests to charge, nor exceptions to the charge made, nor does it state what charge was made.

Judgment was entered in favor of the plaintiff, for the amount of the verdict, with costs; and the defendant appealed from the judgment, to the General Term, by a notice of appeal, dated February 18, 1857.

On the 20th of'February, 1857, the defendants’ attorney served on the plaintiff’s attorney a notice, (exclusive of its title,) in these words, viz.:—

“Sir,—Please to take notice, that the defendants herein except to the report of A. J. Perry, Esq., referee, as follows:—

“ 1st. That they except to the finding, that the damage to the 625£ pairs of window-shades by the fire, is the sum of $248.66.

“ 2d. That they except to the finding, that the amount of the loss sustained by the plaintiff, for the recovery of which this action is brought, is the sum of $401.74.

p. 484

“ 3d. That they except to so much of the finding of the referee as relates to damage of window-shades, upon the ground that the plaintiff had no insurable interest in such window-shades. That he suffered no damage to such window-shades, and that he had no such interest in said shades as was insured in the policy upon which this suit is brought. Peet & Nichols,

“ February, 20, 1857. Defts’ Att’ys.”

O. A. Nichols, for the appellants, insisted upon his right, on this appeal, to have the matters enumerated in his exceptions, contained in the paper of the 20th of Feb., 1857, considered by the Court at General Term, and also his right to review exceptions, taken by him to decisions of the referee, in excluding and admitting evidence on the proceedings had before such referee.

O. A. May, for respondent.

This is an appeal from a judgment against the defendants, entered upon the verdict of a jury.

On the 15th of December, 1855, at Special Term, an order was made in this action, that it “ be referred to A. J. Perry, Esq., of the city of New York, counsellor-at-law, as sole referee, only to ascertain and determine the amount of any loss sustained by the plaintiff, for the recovery of which this action is brought.”

In August, 1856, the referee made his report, finding the amount of the loss to be $401.74.

The cause was tried in February, 1857. Upon the trial, the referee’s report was read in evidence, together with proofs of the fire, etc. The jury found for the plaintiff the amount reported by the referee. Upon their verdict, judgment was entered, Feb. 15th, 1857. On the 20th of the same month exceptions were filed to the referee’s report. The evidence taken on the reference is printed in the case, though it does not appear to have been before the Court at the trial. The defendants now seek, at General Term, on appeal from the judgment, to review the referee’s special report. This is not correct practice. The time to object to the report was before it was read to the jury; it might have been excepted to, and reviewed on special motion. The Code

p. 485

(sec. 469) provides that the rules and practice of the Court in civil actions, not inconsistent "with this Act, shall continue in force, subject to the power of the respective Courts.

The mode which the Code prescribes for reviewing the report of a referee, upon an appeal from the judgment entered on it, is not applicable to a special report of this kind.

Rone of the exceptions taken to the ruling of the Judge on the trial were well taken, and upon them them the counsel seemed to place no reliance.

The judgment must be affirmed with costs.

Affirmed accordingly