Majority
p. 424The Mayor, &c., of the City of New York, Plaintiffs and Respondents, v. The Exchange Fire Insurance Company, Defendants and Appellants.
Headnote
1. The Corporation of the City of New York, with the consent of the counsel to the Corporation-,, may appear, in actions to which they are . parties, by other attorneys of record; and other counsel.2. Under a lease of vacant ground, at a nominal rent, with covenants on the part of the lessees to erect a valuable building of a permanent nature, and at the expiration of the term to surrender the premises in as good condition as reasonable use and wear will permit, damages by the elements excepted, and with no reservation of a right to remove the building, such building belongs to. the lessors, at the expiration of the term, and they then have an insurable interest therein.
3. ' Where a building was originally constructed, and several times used, for •the purposes of an exhibition of industry, or fair; and the defendants, knowing'its use, had several times insured its owners or lessees in respect
• to- it, and the plaintiffs, subsequently becoming its owners, procured the defendants to insure them in respect to it:
Held, that the plaintiffs had a right, after obtaining such insurance, to occupy and use the building for the same purposes; but, that, if it was used • otherwise than as a mere place of exhibition, or was so occupied or used
p. 425(Before Bosworth, Ch. J., Barbour and Monell, J. J.) Heard April 11, 1862; decided June 28, 1862.
as to render the hazard greater at the tiine of the fire than when the insurance was effected, the plaintiffs were not entitled to recover thereon*, Held further, that, in the plaintiffs' action upon the policy issued to them, evidence of the former insurances was admissible as tending to show, in connection with other facts, that the defendants were aware of the general purposes for which the- building was used, and designed to assume a risk of the same character.
4. An exception to a refusal to charge as requested cannot be sustained, where the case states that the Judge refused to give the instructions requested, except so far as they were embraced in the charge which was in fact given, but does not state the whole of the charge given, so as to make it appear that the request was actually disregarded.
Tras action was brought upon a fire insurance policy, issued by the defendants ■ to the plaintiffs, in 1858, upon “ the iron and glass building in the City of New York, known as the Crystal Palace, on Beservoir square, the furniture and fixtures lately owned by the Association for the Exhibition of the Industry of all Nations, and the property of exhibitors remaining in the said building.”
When the cause was called for trial, before Mr. Justice Woodbtjff, and a Jury, on the 21st of May, 1861, the counsel for the defendants moved to strike the same from the calendar, or to dismiss the complaint, on the ground that the attorney of the plaintiffs, of record, was not the counsel to the Corporation, nor in any way connected with the law department of the city, and, therefore, that the plaintiffs were not legally represented before the Court; which motion was overruled and an exception taken.
The following facts were established by the pleadings, and by the evidence given on the part of the plaintiffs upon the trial:
On the 23d of March, 1852, the Mayor, Aldermen and Commonalty of the City of New York, then being the owners in fee of the lot of ground in the city, known as Beservoir square, by their indenture, leased the said premises to Edward Biddle and his associates, for the term of five years, if required and used by them for the purpose mentioned in the lease, or, if not, then for such period, not
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exceeding five years, a's- they might use the same, at an •annual rent of one dollar, in quarter-yearly payments, whereon to erect a building of iron and glass, of a certain description, for the purpose of ap Industrial Exhibition of all Rations. The lease provided that the price of admission to the building, for individuals, should at no time exceed fifty cents, and that in case of default in payment of rent, or in any of the covenants, on the part of the lessees, the lessors might re-enter and remove all persons from the premises; and the lessees covenanted and agreed, in said lease, that they would erect such building and charge no more than fifty cents for admission, and that, at the expiration of the term they should quit and surrender the demised premises in as good state and condition as reasonable use and wear thereof would permit, damages by the,elements excepted. «
The building, a costly structure, of a permanent character, was erected by the lessees, and used by them for the purposes mentioned in the lease, for some time. In December, 1854, John H. White was appointed by the Supreme Court, Receiver of the property of the association, including their interest in the Crystal Palace building, and entered into possession. In the fall of 1856 the American Institute was permitted, by the Receiver, to hold a fair in it, for six or eight weeks, and again in 1857. Rent was paid to the city, according to the provisions of the lease, up to the first of May, 1857.
On the 31st of May, 1858, the Comptroller of the city sent an officer, with some policemen, who in the absence of the Receiver then having the superintendence of the building, took possession thereof, and, on the return of that person, upon the same day, he surrendered the premises to the officer.
In June, 1858, the Corporation procured from the defendants a policy of insurance against fire, upon the building, then known as the Crystal Palace, together with the furniture and fixtures therein, lately owned by the Association for the Exhibition of Industry of all Rations, for account
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of whom it might concern. The policy covered a risk of $5,000, and contained the usual clauses in regard to hazardous and extra hazardous goods, or occupations, requiring the company’s consent to their exercise or deposit, to be expressed in writing in or upon the policy, in default whereof the policy should be of no effect. In October, 1858, the building, with most of its contents, was destroyed by fire, the loss upon the building largely exceeding the amount of insurance upon it; and proofs of such loss were duly made by the plaintiffs.
Upon the trial the plaintiffs waived all claim for loss on the property insured, other than the building itself.
At the conclusion of the plaintiffs’ evidence, the counsel for the defendants moved to dismiss the complaint, which motion was denied and the decision excepted to.
The defendants then proved that the plaintiffs let the premises to the trustees of the American Institute, two days after the policy was issued, and that the fire occurred while they were in possession of the building, with their property and fixtures, and the property of their exhibitors.
The defendants then produced testimony" showing, among other things, that at the time of the loss there were in the building a number of articles deposited, and operations carried on, as a part of the exhibition, which were specified in conditions of the policy as extra hazardous; and evidence was also given tending to show that the exhibition of the Institute was then ah unusually large one, and that the quantity of steam machinery, &e., was greater than in former years.
The plaintiffs subsequently offered in evidence policies of insurance, which the defendants had issued to the Eeceiver of the property of the Association for the Exhibition of the Industry of all Nations, before the plaintiffs took possession; and offered, in connection with these policies, which were in substantially the same terms as the one sued on, to prove that the exhibition, at the time of loss, was substantially of the same character as those which were had during the life of such former policies.
p. 428I. It is not -competent for attorneys, not counsel to the Corporation, to prosecute this suit. The charter and ordinances of the city devolve on the counsel of the Corporation, “all the law business of this Corporation.” (1 Laws of 1857, p. 882, § 26.) An attorney may always be called on to show his authority, unless there has been an acquiescence in his appearance. (Campbell v. Bristol, 19 Wend., 101 ; 99 Plaintiffs v. Vanderbilt, 4 Duer, 636 ; King of Spain v. Oliver, 2 Wash. C. C. R., 429; Gillespie's Case, 3 Yerg., [Tenn.,] 325; Allen v. Green, 1 Bailey, [S. C.,] 448; McKiernan v. Patrick 4 How., [Miss.,] 333; West v. Houston, 3 Harring., [Del.,] 16; Cartwell v. Menifee, 2 Pike, [Ark.,] 358.) And if he does not show it the name of the party may be struck out. (Maries v. Maries, 23 Eng. L. & Eq., 221.) Or perpetual stay be awarded. (Campbell v. Bristol, 19 Wend., 101 .) Or the suit be dismissed on defendant’s motion. (Frye v. Calhoun Co., 14 Ill., 132 .) Hor can an attorney delegate his authority. Delegatus non potest delegare; Vicarius non habet vicarium. (Broom’s Legal Maxims, 384; Story on Agency, §§ 13, 14, 24; 2 Kent Com., 633; Paley’s Agency, 175; Kellogg v. Norris, 5 Eng. [Ark.] R., 18 ; Ratcliff v. Baird, 14 Texas R., 43.) Personal trust and confidence, which cannot be delegated. (Hitchcock v. McGehee, 7 Porter, [Ala.,] 577; Johnson v. Cunningham, 1 Ala., 249 ; Tomlin’s Law Dict., Tit. “Atty.;” 13 Edw. I., 2 Westm.) And this is a public office, not merely ministerial, and
To all this evidence the defendants objected, but their objection was overruled, and the evidence received.
Exceptions were taken by the defendants to sundry other rulings of the Judge during the progress of the trial, and also to portions of his charge, as well as to his refusal to charge as requested.
The Jury returned a verdict for the plaintiffs for the amount claimed, and from the judgment entered thereon the defendants appealed.
John W. Edmonds, for defendants, appellants.
p. 429cannot be delegated. (Ramson v. Mayor, &c., of New York, 24 Barb., 226 ; Lynch v. Livingston, 8 Barb., 463 ; 2 Seld., 422.) Moreover, plaintiffs being a corporation, can appear only by attorney duly authorized. II. The city had no insurable interest. Such interest to the amount of the loss claimed must be averred and proved. (Pars, on Merc. Law, 408, 507; Howard v. Albany Ins. Co., 3 Denio, 301 ; Murdock v. Chenango Ins. Co., 2 Comst., 210.) A mere possibility of ownership is not enough. (Pars. on Merc. Law, 507 ; Carter v. Rockett, 8 Paige, 437; Niblo v. American Ins. Co., 1 Sandf. S. C. R., 551; Laurent v. Chatham Ins. Co., 1 Hall, 44 , and see 18 Pick., 419 .) There was no forfeiture of the building to the lessors, on the expiration of the term, by reason of the non-removal of the building during the term. In support of this point the counsel cited and commented on the following authorities, as showing the true doctrine of forfeiture of fixtures by an outgoing tenant. (Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W., 14; per Ld. Holt in Poole’s Case, 1 Salk., 368; Prince v. Case, 10 Conn. R., 378; Parker v. Redfield, Id., 496 ; King v. Wilcomb, 7 Barb., 265 ; Smith v. Benson, 1 Hill, 176 ; Russell v. Richards, 1 Fairfield, 429 ; Godard v. Gould, 14 Barb., 662 ; Mason v. Penn, 13 Ill. R., 525; Whiting v. Brastow, 4 Pick., 310 ; Wansborough v. Maton, 4 A. & E., 884; Lawrence v. Kemp, 1 Duer, 365 ; Holmes v. Tremper, 20 Johns., 29 ; Doak v. Wiswell, 38 Maine R., 569; Fuller v. Tabor, 39 Id., 519; Mott v. Palmer, 1 Comst., 564; Smith v. Jenks, 1 Denio, 580 ; 1 Comst., 90; Godard v. Gould, 14 Barb., 662 ; Van Ness v. Packard, 2 Pet., 145 ; Dubois v. Kelley, 10 Barb., 495 ; Pemberton v. King, 2 Dev., 376 ; Preston v. Briggs, 16 Verm. R., 124; Curtiss v. Hoyt, 19 Conn. R., 154; Ombony v. Jones, 19 N. Y. R., 238; Grady on Fixtures, 183; 35 Law Lib., N. S.) III. The Court erred as to the violation of the conditions, both in the charge and in refusals to charge as requested.
p. 4301. This is not an equitable action to reform the contract, but a strictly legal action to enforce a contract set out in hcec verba. And the only question is, what are the terms of the contract, and have they been violated ? 2. In order to arrive at the terms of the contract, its language is to determine where there is no ambiguity. In insurance law, this rule is very rigidly adhered to. (2 Park on Ins., 975; Hobby v. Dana, 17 Barb., 111 ; Sillem v. Thornton, 26 Eng. L. & Eq., 238; Mead v. N. W. Ins. Co., 3 Seld., 530; 7 Gray, 257 ; Stokes v. Cox, 37 Eng. L. & Eq., 561; Wall v. E. Riv. Ins. Co., 3 Duer, 264 ; see also 3 Gray, 583 ; 30 Penn. R., 315; 3 Dutch., 134.) 3. In this policy there was no ambiguity. It is an insurance on the building described, its fixtures, furniture and contents, and not a word as to any use that was to be, or might be made of it. The risk was on the building, &c., as then used, and as then situated. And the insurance was to protect the property in its then condition. 4. There was also a large increase to the risk, not only beyond the condition of things when the insurance was made, but beyond that of any former use of the premises. Any alteration materially increasing the risk voids the policy. (2 Parsons on Mer. L., 504; 1 Dutch., 78; Westfall v. H. R. Ins. Co., 2 Kern., 289; Glen v. Lewis, 20 Eng. L. & Eq., 364; S. C., 8 Exch., 607.) And it was out of this increase of risk that the loss occurred in this case. 5. Yet the Judge ruled, that the plain language of the contract might be disregarded, and an increase of the risk be set aside, by evidence of the manner in which the building had been used in times past. The plaintiffs’ remedy, if any, was in an action to reform the contract. (1 Story Eq. Jur., § 152 ; Wood v. Dwarris, 11 Exch., 493; S. C., 33 Eng. L. & Eq., 514 ; Wheelton v. Hardisty, 8 Ellis and Bl., 232 ; Lyman v. U. Ins. Co., 2 Johns. Ch. R., 630.)
p. 431But even in such case it must be made out by proof that such was the intention of the parties to allow such increase of the risk, and it would be open for the insurance company to show that they had no such intention, whereas it is now taken for granted, without proof, that they had. (1 Story Eq. J., §§ 152, 158; Gillespie v. Moon, 2 Johns. Ch. R., 585; Lyman v. U. Ins. Co., Id., 630 .) Now, there is no proof in this case that the insurance company intended to assume the risk of another exhibition in the building. It is a mere inference from a former use of the building. And, at all events, if such an inference is to be drawn, it is for the Jury, and not an inference of law, as assumed by the Judge in his charge. (Gillespie v. Moon, 2 Johns. Ch. R., 585; Keisselbrack v. Livingston, 4 Johns. Ch. R., 144.) IY. The Court erred in admitting the evidence of previous insurances on the premises, and in its charge to the Jury on the evidence thus introduced. This was in effect admitting parol evidence, to vary the written agreement, and permitting the Jury on such evidence to read the policy in a manner differing from its language and plain import. 1. It is of paramount importance that parties should be held to perform contracts as they have made them, and in no other manner. (Chaffee v. Cattaraugus Ins. Co., 18 N. Y. R., 384; Brown v. Same, Id., 390; Plumb v. Same, Id., 394; Lamatt v. Hudson R. Ins. Co., 17 N. Y. R., 199; 1 Parke on Ins., 46; Pars, on Mer. L., 494.) 2. The “ conditions ” relate not merely to the state at the time of the policy, but are a warranty that it shall remain so. (Westfall v. Hudson R. Ins. Co., 2 Duer, 490 ; Sillem v. Thornton, 26 Eng. L. & Eq., 238; Parsons on Mer. Law, 499, and note; Williams v. N. Eng. Mutual, 31 Maine, 219.) 3. The conditions must be strictly performed, whether the risk be increased or not. (2 Park on Ins., 661.) 4. Proof of usage is not admissible to explain or vary the language, unless it be so general a usage of trade as
p. 432necessarily to enter into and form part of the contract. (1 Park on Ins.,46; Blackett v. Royal Ass. Co., 2 C. & J., 244; Gabay v. Lloyd, 3 B. & Cr., 793; Robertson v. French, 4 East, 134; 2 Greenl. Ev., § 377 ; Illinois Mutual v. O'Neile, 13 Ill., 89 ; Pars, on Mer. L., 490.) 5. Evidence of a particular use of the building before-the policy is not admissible, and is no excuse for a departure from the language of the contract. (Mead v. N. W. Ins. Co., 3 Seld., 534; Macomber v. Howard Ins. Co., 7 Gray, 257 ; Illinois Mutual v. O'Neile, 13 Ill.., 89; State Mutual v. Arthur, 30 Penn., 315 ; Wall v. E. R. Ins. Co., 3 Duer, 264 .) I. The plaintiffs, as owners of the fee of the land, in possession at the time of the insurance and of the fire, had an insurable interest. The building was not a removable fixture, but a part of the realty. II. The policy described the building as “ the iron and “ glass building known as the Crystal Palace on Reservoir “ Square; it also covered the furniture and fixtures lately “ owned by the Association for the Exhibition of the Industry of all Nations;” also, “ the property of exhibitors “remaining in the said building.” This description of a building and its contents, was a description of the purpose of its occupation, as much so as if described as a cabinetmaker’s warehouse, or a distillery, or a printing house. It was also a conspicuous object in a public square of the city in which all parties resided, and which had been continuously a public place of exhibition long before and up to the date of the policy. It was of course insured as a building to be occupied and used for the purpose indicated by the description, and not as a building to be left vacant. The restriction of the modes of use in the policy on which the defendants place their defense admits the right of use in every way not within the restriction. (Harper v. Albany M. Ins. Co., 17 N. Y. R., 194; Bryant v. Pough
Daniel Lord, for the plaintiffs respondents.
p. 433keepsie M. Ins. Co., 17 N. Y. R., 200; Delonguemare v. Tradesmen's Ins. Co., 2 Hall, 589 ; appr. 17 N. Y. R., 197; Harper v. City Fire Ins. Co., 22 N. Y. R., 442 ; Townsend v. N. W. Ins. Co., 18 Id., 168; Grant v. Howard Ins. Co., 5 Hill, 10 .) III. The merchandise, machinery, &c., in the building were all within the use described in the policy, of a place of the public Exhibition of the Industry of all Rations; and they were therefore within the description covered by that of the building insured as a'building to be used. IV. The use and occupation of the building was not “ an appropriation, applying or using, for the purpose of carrying on or exercising any trade or vocation specified “ in any of the classes of proscribed hazards, nor a storing “ or keeping therein of any of the goods or merchandise “ proscribed as hazardous.” 1. The exhibition, by way of experiment, of machinery, Sc., or of articles of industry, was not carrying on or exercising any trade, nor the storing or keeping of merchandise. These latter* clauses apply to a substantial business, and not to a mere exhibition. (1 Phil. Ins., 479, pl. 882, 883, and cases there cited; Hynds v. Schenectady Ins. Co., 1 Kern., 561; O'Niel v. Buffalo Ins. Co., 3 Com. 3., 122 ; Langdon v. N. Y. Ins. Co., 1 Hall, 226 ; 6 Wend., 623 .) 2. Exceptions to exempt an insurer are all to be restricted in their construction, the policy being a contract framed by him. (Anderson v. Fitsgerald, 4 House of Lords’ Cases, 484; 24 Eng. L. and Eq., 1.) V. There is no evidence that the risk was increased by any means within the control of the insured.
The objection of the defendants’ counsel to the appearance of Mann & Rodman as attorneys for the plaintiffs in the action, was not well founded. The General Term of this Court has decided, in a similar case, that, although it is made the duty of the counsel to the Corporation, by statute, to bring and
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defend their suits, and to perform all their law business, there is nothing in the statute intended or calculated to prohibit the employment of other attorneys or counsel by the city authorities, as was done, with the consent of the Oorporation Counsel himself, in this case.
Neither the exception of the defendants to the denial of their motion to dismiss the complaint when the plaintiffs rested, nor their exception to that part of the charge of the Judge, in which he instructed the Jury that the plaintiffs, as the owners of the land upon which the building stood, had an insurable interest to the extent of the value of the building, was well taken. The plaintiffs were the owners in fee of the land upon which the building stood. They were, therefore, the owners of the building, which was a permanent structure, and attached to the freehold and formed a part of it, unless there was something in the lease to the association taking the case out of the general rule, that buildings of that description belong to the realty, which, clearly, there is not. No right to remove the building is reserved or granted to the lessees in the lease; but, on the contrary, the "premises, which were of great value, were demised to the lessees at a merely nominal rent, in consideration of which, they, on their part, undertook and covenanted that they would erect thereon a building of a certain description, and that, at the expiration of the term, they would quit and surrender the demised premises, in as good state and condition as reasonable use and wear thereof would permit, damage by the elements excepted. This language imports an intent to surrender the structure which was, by the terms of the léase, to be erected, as well as the land upon which it was to stand. It seems hardly possible to suppose that the parties designed to provide against an injury by use and wear to a block of ground, then wholly vacant, and which,, under the lease, was only to be used by placing a building upon it; nor that they intended to except mere land, occupied as this was to be, from damage by the elements.
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There is nothing in the case, as presented to the General Term, showing, or tending to show, that the Justice before whom the cause was tried refused or omitted to charge the Jury, in substance, everything that he was requested to charge them by the counsel for the defendants. The case states that the Judge refused to give the instructions to the Jury, as requested, “ except so fa/r as they tvere embraced in the charge which was, in fact, given;” and that he charged the Jury, “ among other things,” certain matters as set forth in the case; but there is no statement showing what those other things, charged by him, were. For aught that •«appears, therefore, none of the requests were omitted by the Judge; and it follows that the exception, in this regard, cannot be sustained.
The evidence of former insurances upon the property, by the defendants, tended to show, in connection with other facts proved, that the defendants were fully aware, at the time the policy was issued to the plaintiffs, of the general purposes for which the Crystal Palace had been, and then was used; and that they designed to assume a risk of the same character as those covered by the prior policies, in almost the same words. It was, therefore, properly admitted.
There was but one important fact, to be determined by the Jury, upon which there was any doubt; that is, whether the risk was so increased, after the issuing of the policy, as to render the same inoperative. Upon that subject the Judge charged, substantially, that the plaintiffs had a right, after the policy, to occupy and use the building for the same purposes for which it had theretofore been used within the knowledge of the defendants when the risk was taken•, but that if it was used otherwise than as a mere place of exhibition, or was so occupied or used as to render the hazard greater at the time of the Are than when the insurance was effected, the plaintiffs were not entitled to recover. The charge, in this regard, was undoubtedly correct.
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Upon a careful examination of the entire case and exceptions, we are of opinion that no error, was committed upon the trial which authorizes us to disturb the verdict. The judgment must, therefore, be affirmed.
Ordered accordingly.