Hoogland v. Wight — 20 N.Y. Super. Ct. 394

Majority

p. 394

Elbert Hoogland and Frank H. West, Plaintiffs and Respondents v. John Wight, Defendant and Appellant.

Headnote

1. The report of a referee, like the verdict of a jury, in a case of conflicting evidence, is conclusive, as to questions of fact.

2. In a suit, by one part owner of a vessel against another part owner, to ' recover the aliquot part of the premium chargable to the latter upon policies effected at his request and covering his interest, it is not a defense that the premium was paid by the negotiable promissory notes of the plaintiff, which have matured, and are outstanding, unpaid.

(Before Woodbuit, Monobiet and Bobebtsoh, J. J.)

Heard October 9,

decided November 10, 1860.

Appeal by the defendant, from a judgment entered on the report of F. F. Marbury, Esq., as referee.

This is an action brought.by the plaintiffs, as the general assignees of Messrs. Lane, West & Co., to recover from the defendant moneys paid by that firm as ship’s husbands, in 1855 and 1856, to insure defendant’s interest in the schooners Emetine and Kate Stewart. The defendant, in his answer, denies that he authorized the effecting of the insurance, and denies that the plaintiffs’ assignors expended the moneys claimed. The referee found that the defendant authorized the effecting of the insurance, and held that the plaintiffs are entitled to recover a balance, including interest, of $500.83 ; for which sum, he ordered judgment for the plaintiffs.

The insurance was effected in the Atlas Mutual Ins. Co. and the Astor Mutual Ins. Co., (among others.) For the premiums payable on the insurances effected for the defendant, Lane, West & Co. gave their negotiable promissory notes, which were accepted as payment by the companies insuring; which notes amount, in all, to $414.34. Of these notes, Lane, West & Co. paid, at maturity, about November 1, 1856, to the amount of $245.22; and the balance, being $169.12, and which matured March 12,1851, hav'e not been paid, and are outstanding.

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“The defendant offered to prove that Lane, West & Co., had, previously to the issuing of the policies in question, given subscription notes to the Atlas and Astor insurance companies, and that the premiums for these policies were, by their direction, applied' in reduction of the said subscription notes respectively.”

The testimony was excluded by the referee, as immaterial and irrelevant, and the defendant excepted.

The defendant also offered to prove “ that he had owned vessel property for the last ten years, and during that time has not had any insurance on any of his vessel property.” The referee excluded the evidence, and the defendant excepted.

Benedict, Burr Benedict, for Appellant.

Wm. E. Curtis, for Respondents.

—It is well settled that one part owner, though he be also managing owner, (ship’s husband,) cannot, by ordering an insurance of a ship without authority from another, charge the latter with any part of the premium paid, unless the other afterwards assent to the insurance. (Abbott on Shipping, 137; French v. Backhouse, 5 Burr, 2727 ; Bell v. Humphries, 2 Starkie, 345 ; 2 Duer on Ins. 200.)

The referee found that the defendant did authorize " insurance to be made upon his interest in the vessels, by Lane, West & Co.

The report of a referee, like the verdict of a jury is, as a general rule, conclusive in a case of conflict of evidence. (1 E. D. Smith, 85 ; 3 id. 98 ; 4 id. 565 ; 3 Corns. 168.) It is, therefore, like such verdict, to be set aside only where the finding is clearly against the weight of evidence; or where, upon the trial, some rule of evidence or principle of law has been violated. (1 E. D. Smith, 85 ; 5 Duer, 216 .)

The evidence adduced on the part of the plaintiffs warranted the finding of the referee. The witness Lane, states

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expressly, that the defendant requested him to insure his interest in the schooners, and that insurance was effected in accordance with such request. The witness West says, that the defendant asked him if the schooners were insured. The interest of the defendant was insured by Lane, West & Co. And again, during the time Mr. Johnson was owner of the defendant’s present interest in the schooners, (the defendant having bought of him,) the firm of Lane, West & Co., as ship’s husbands, were in the habit of insuring the interest of Johnson, and this fact the defendant knew. The defendant, at the time of purchasing from Johnson, agreed to pay the premium of insurance due to Lane, West & Co., from Johnson. In the bill rendered to the defendant by Lane, West & Co., under date November 6, 1841, (marked Exhibit No. 9,) there is a charge for insurance of the schooner Kate Stewart, for one year.

This evidence is assailed and contradicted by the defendant alone.

Neither of the exceptions is well taken; the testimony offered was properly excluded.

The decision and judgment therefore, were correct, and the judgment must be affirmed.

Ordered accordingly.