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(184 N. Y. 92)

ROSSENBACH v. SUPREME COURT I. O. F. (Court of Appeals of New York. Feb. 13, 1906.) 1. WITNESSES CROSS-EXAMINATION - CRED

IBILITY.

In an action on a life insurance certificate, defendant claimed that the answers to questions in the application as to insured's use of intoxicating liquors were false, and there was evidence that he was an habitual user of intoxicating liquors, had been convicted therefor, and confined in the penitentiary. Plaintiff testified that the answers were made without the knowledge or consent of the insured, and that she had never seen him intoxicated. Held, that the exclusion of a question on cross-examination, as to whether she had ever seen him in the penitentiary, was reversible error. 2. SAME.

Where, in an action on a life certificate, plaintiff's son testified that he had known the insured all his life, and had never seen him intoxicated, exclusion of a question on cross-examination as to whether he had ever talked with plaintiff about having a complaint made against the insured for intoxication was reversible error; the question materially affecting the credibility of the witnesses.

the certificate of insurance, did unlawfully, wrongfully, and falsely represent and state to the medical examiner, among other things, that he did not drink wine, spirits, or malt liquors, and that he never had been intoxicated. The answer further alleged that the defendant relied upon said representations, and believed them to be true, and that it was thereby induced to accept the deceased as a member of its order, and issue to him said certificate; that in fact and in truth said statements were false and untrue, and that they were made by the deceased with a preconceived purpose of cheating and defrauding the defendant in obtaining admission into its order and said certificate of insurance. The issues joined by the pleadings were tried before the court and a jury found in favor of the plaintiff, and the judgment entered thereon has been unanimously affirmed by the Appellate Division. The only questions remaining for our consideration are those arising upon the exceptions taken upon the trial.

In the assured's statement to the medical ex

Appeal from Supreme Court, Appellate aminer, presented with his application for Division, Fourth Department.

Action by Theresa Rossenbach against the Supreme Court of the Independent Order of Forresters. From a judgment of the Appellate Division (90 N. Y. Supp. 1112, 98 App. Div. 634), affirming a judgment for plaintiff, defendant appeals. Reversed.

See 73 N. E. 1132.

O. P. Stockwell, for appellant. George V. Fleckenstein, for respondent.

CHASE, J. The plaintiff is the beneficiary named in a certificate or policy of insurance issued by the defendant to her brother, one of its members. On the 10th day of October, 1900, the assured made application for membership in the defendant, and for fraternal insurance of $2,000. The application was accepted, and the assured was initiated into the order November 22, 1900. The certificate of insurance is dated December 18, 1900, and was delivered December 27, 1900. Prior to the execution and delivery of the certificate, and on the 12th day of December, 1900, the assured was committed to the State Hospital for the Insane at Rochester, and remained there until October 27, 1901, when he died. The defendant refused to pay the amount of the certificate, and the plaintiff brought this action thereon. The defendant by its answer alleged in substance that the assured, as a condition of being admitted into membership of the defendant, promised and agreed that if he should make any false representations in his application or written statement to the medical examiner or conceal any mental or physical infirmity or fail to disclose any material fact relating to himself, he would ipso facto forfeit all payments that he had made to the defendant, and all benefits that be or his beneficiaries would otherwise be entitled to receive. The answer further alleged that the deceased, for the purpose of obtaining

membership and insurance, the answer "No" is given to the following questions: "Do you drink wine?" "Do you drink spirits?" "Do you drink malt liquors?" "Have you been intoxicated within the past five years?" To the the question, "When was the last occasion?" the answer "Never" is given, and to the further question, "What has been your habit in this respect during life?" the answer "Temperate" is given. The plaintiff asserted upon the trial that the assured did not make said answers to the questions relating to the use of intoxicating drinks, but that the medical examiner of the defendant placed the answers to said questions in said statement presented with his application for membership without asking him such questions and without the knowledge or consent of the assured. Many witnesses were sworn by the defendant to show that the assured was an habitual user of intoxicants, and that he was repeatedly and almost continuously intoxicated for several years prior to his death, and that on two occasions, once in December, 1897, and again in October, 1899, he was arrested and convicted for public intoxication, and that on each occasion he served his sentence therefor in the penitentiary at Rochester. The plaintiff claimed on the trial that the defendant had not shown that the person confined in the penitentiary for public intoxication, although bearing the name of the assured, was in fact the assured. The plaintiff was sworn as a witness, and testified that the deceased was employed at her husband's store for about two years prior to being taken to the hospital, and that he had his dinner at her house every day during that time, and that she saw him on each of those occasions. She further testified that she never saw him intoxicated, and that she never saw him drink intoxicating liquors, except one glass of beer several years prior to his death. On cross

examination she was asked the question: "Did you see Marzhauser [assured] in the penitentiary in this city at any time?" The question was objected to, without specifically stating the reason therefor, and the objection was sustained and defendant excepted. Plaintiff's son was also sworn as a witness on behalf of the plaintiff, and he testified that he lived with the plaintiff, and that he had known his uncle, the assured, all his life, and that he never saw him intoxicated or drink intoxicating beverages. He was asked, on cross-examination: "Did you talk with your mother about having a complaint made against him for intoxication at that time?"the time referred to was the year or two during which the assured had his dinners at the plaintiff's house. The plaintiff objected to this question, upon the ground that it was immaterial, incompetent, and irrelevant, and the objection was sustained, and the defendant excepted.

The principal questions litigated on the trial and left to the jury for their determination were: First, whether the assured gave the answers appearing in said statement relating to his use of intoxicating liquors, as claimed by the defendant, or whether they were written therein by the defendant's medical examiner without the knowledge or consent of the assured; and, second, if the answers were in fact given by the assured as shown in his said statement, whether they were true. The question to the plaintiff was material upon the identity of the person confined in the penitentiary for public intoxication and as affecting the good faith and credibility of the plaintiff as a witness. If the plaintiff's son discussed with her the question as to the advisability of having the assured arrested for intoxication, it would materially affect the weight to be given to his testimony in contradiction of the testimony of the defendant relating to the assured's continued and excessive use of intoxicants. As these questions were clearly intended to elicit testimony materially affecting one of the questions seriously litigated on the trial, the refusal to allow the questions to be answered cannot now be said to have been immaterial,

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, and WERNER, JJ., concur. HISCOCK, J., not sitting.

Judgment reversed, etc.

(184 N. Y. 77, 570)

BURKE v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.

(Court of Appeals of New York. Feb. 13, 1906. On Rehearing, March 13, 1906.) INSURANCE-LOSS BY FIRE-PROPERTY HELD IN TRUST.

The owner of a stock of glass on hand insured it under a policy covering its own or that

held by it in trust, or sold, but not delivered, for which it might be held liable, and thereafter sold and delivered the glass, agreeing that all glass manufactured by it within a specified time should be the property of the vendee as soon as manufactured, and subject to the latter's order, meanwhile to be stored in warehouses of insured leased to vendee for that purpose, the insured to assume responsibility for all loss except "loss by fire," the glass to be insured by the vendee; the vendor, however, to pay the premiums. On destruction of the property by fire, held, in an action on the policy by an assignee of the insured, that the entire insurable interest in the property was in the vendee, and the fact that the vendor was the custodian of the property did not show that it was held in trust within the meaning of the policy.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William E. Burke against the Continental Insurance Company of the city of New York. From a judgment of the Appellate Division (91 N. Y. Supp. 402, 100 App. Div. 108), affirming a judgment for plaintiff, defendant appeals. Reversed.

J. H. Metcalf and Clarence M. Bushnell, for appellant. Moses Shire, for respondent.

BARTLETT, J. This action was brought to recover on a policy of fire insurance for $2,500 issued by the defendant to the D. O. Cunningham Glass Company of Pennsylvania, a corporation engaged in the manufacture of glass at Pittsburg. The plaintiff sues as the assignee of the above company. The only defense now insisted upon is that the Cunningham Company fraudulently misrepresented that it owned the glass claimed in its proofs of loss, and therefore the defendant was not liable.

The policy was issued on the 4th of May, 1900, for the term of one year for "$2,500 on stock of window glass and packages containing the same, his own, or held by him in trust, or sold but not delivered, for which he may be held liable; all while contained in any or all of the brick and frame buildings, and on premises of the assured occupied for the manufacture of window glass, situate bounded on the north by James street, on the east by S. 27th street, on the south by Mary street, on the west by S. 26th street, Pittsburg, Pennsylvania." A fire occurred on April 3, 1901, and the property described in the policy was lost or damaged to the amount of $4,646.62. The proportion of the loss payable under the policy here involved was $129.43, there being other companies on the risk. It is claimed by the defendant that, notwithstanding the small amount involved in this action the question is of importance. After the issue of this policy, and on the 19th of December, 1900, the D. O. Cunningham Glass Company, as party of the first part, entered into a written agreement with the Independent Glass Company, as party of the second part. a corporation created under the laws of the state of New Jersey, which was "incorporated

for the purpose of conducting and carrying on the business of buying, selling, operating, and dealing in window glass and other business incident thereto." Among other provisions In said agreement are the following: "That the said party of the first part in consideration, etc., has bargained and sold, and does hereby bargain and sell unto the party of the second part all window glass, which said party of the first part has heretofore manufactured, and has on hand at the date hereof, or was manufactured or caused to be manufactured during the year ending December 31, 1902, at the price," etc. "All said glass to be delivered and become the property of the party of the second part as soon as manufactured; the same to be delivered on cars, or shipped on the orders of the party of the second part, or stored in the warehouses, or elsewhere on property of the party of the first part for shipment thereafter by the party of the first part upon orders or directions given by the party of the second part, and for this purpose the said party of the first part does hereby lease and let unto the party of the second part, for the purpose of storing its glass as aforesaid at a rental of $1, its ware-. house or warehouses, or other buildings in which the same may be stored, situate at Pittsburg, Pa. * The said party of the first part shall until said glass is subsequently shipped upon the orders of the said party of the second part, be responsible and liable for and charged with the custody and safety of the glass so to be stored in the warehouse or buildings aforesaid, and with any and all loss thereof or damage thereto, except loss by fire. * Said glass shall be insured by the party of the second part, the premiums of insurance, however, shall be paid by the party of the first part."

The appellant argues that the agreement between these companies was an absolute and unconditional change in the interest, title, and possession of the subject of insurance, and rendered the policy void. Also, that the words in the policy, "his own or held by him in trust, or sold but not delivered, for which he may be held liable," do not permit an absolute sale and delivery as was made to the Independent Glass Company. The situation after the execution of the agreement is briefly this: The Cunningham Company sold absolutely and delivered to the Independent Glass Company all the glass it then had on hand, and, further, all the glass it should make from the date of the agreement until the 31st of December, 1902, was to become the property of the Independent Glass Company as soon as manufactured. This manufactured product was to be shipped to the Independent Company from time to time according to its directions, and in the meantime was to be stored in the warehouses of the Cunningham Company, which were leased to the Independent Company at a rent

al named for this purpose. The Cunningham Company had the title to no glass whatever manufactured or to be manufactured, and all glass was stored in warehouses leased by it to the Independent Company. The sole interest remaining in the Cunningham Company was that they were "responsible and liable for, and charged with the custody and safety of the glass so to be stored in the warehouse or buildings aforesaid, and with any and all loss thereof or damage thereto, except loss by fire." Its custody of the property was that which vests in any watchman or caretaker. The glass was to be insured by the Independent Company, but the premiums paid by the Cunningham Company. As caretaker, the Cunningham Company was charged with the custody and safety of the glass so stored, and with any and all loss and damage thereto, except by fire. If any of the glass had been stolen by a person breaking into the building and carrying it away, or if a trespasser upon the premises had broken or destroyed any portion of the glass, the Cunningham Company would have been liable, and to the extent of that interest in the property it could have insured against the loss in any company taking such a risk. To say that the Cunningham Company under these circumstances could insure against loss and damage by fire is to ignore the plain provisions of this agreement, as it could suffer no loss by the destruction of the glass by fire.

The policy undoubtedly contemplates certain changes in title of the property which was originally insured by the Cunningham Company as absolute owner. It is first pro

vided that if it is held "in trust" the insurance remains good. The words "in trust" have been given a very broad and liberal construction by this court, and it was held that they "are not to be taken in any strict technical sense, which would limit their operation to cases where the title to goods had been vested in a trustee subject to some specific trust to be executed by him. The words 'in trust' may, with entire propriety, be applied to any case of bailment where the goods belonging to one person are entrusted to the care of another, for which the bailee is responsible to the owner." Stillwell v. Staples, 19 N. Y. 401, 403. The controlling words in the above quotation are "for which the bailee is responsible to the owner." In the case before us if there had been a loss by theft or through the careless or malicious act of a trespasser, the Cunningham Company was responsible to the owner under such conditions as caretaker. It cannot, however, be said, under a reasonable construction of the agreement, that the Cunningham Company held this in trust for the Independent Company so as to enable it to recover in case of loss by fire. It had no title to the property; it had leased its ware

houses for the storage of the same, and rested only under a very limited liability. The next provision of the policy covers property "sold but not delivered," for which the insured is liable. This property had been both sold and delivered. We are of opinion that the Independent Company was vested with the title and entire insurable interest in this property in case of loss by fire; that it was its duty under the express provisions of the agreement to take out the policy of insurance in its name, the Cunningham Company paying the premiums.

The judgments of the Trial Term and Appellate Division should be reversed, new trial ordered; costs to abide the event.

CULLEN, C. J., and GRAY, O'BRIEN, WERNER, and CHASE, JJ., concur. HISCOCK, J., not sitting.

Judgments reversed, etc.

On Rehearing.

PER CURIAM. Our opinion reversing the judgments below rested on the single point that the Independent Company was vested with the title and entire insurable interest in this property in case of loss by fire; that it was its duty under the express provisions of the agreement to take out the policy of insurance in its name, the Cunningham Company paying the premiums. The plaintiff bases this motion for reargument on the ground that the court overlooked the fourth finding of fact, which reads as follows: "That after said contract was entered into,' and before the fire hereinafter referred to, L. Springer Cunningham, then treasurer and manager of the Cunningham Company, and one Sayre, then vice president and treasurer of the Independent Company, on behalf of their respective companies, entered into a parol agreement whereby the said Cunningham Company assumed liability to the Independent Company for any loss by fire to the property described in said policy of insurance to the amount to which this defendant would be liable to the insured under said policy of insurance."

It is difficult to understand how the counsel for plaintiff reaches the conclusion that the court overlooked this finding of fact when it was fully discussed in both briefs. The fact that certain points made upon argument are not discussed in the opinion does not warrant the conclusion that they were overlooked. The fourth finding of fact is without evidence to support it, and the motion for reargument should be denied, with $10 costs.

CULLEN. C. J., and GRAY, O'BRIEN, BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

Motion denied.

MEMORANDUM DECISIONS.

ANDRIS. Respondent, v. NATIONAL SUGAR REFINING CO. et al., Appellants. (Court of Appeals of New York. Jan. 30, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (93 App. Div. 377, 87 N. Y. Supp. 671), entered May 7, 1904. modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Ralph E. Prime and Charles C. Paulding, for appellants. Isaac N. Mills, for respondent.

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BALDWIN et al., Appellants, v. RICE et al., Respondents. (Court of Appeals of New York. Feb. 6, 1906.) Motion for reargument. See 183 N. Y. 55, 75, N. E. 1096. John Brooks Leavitt, Jared F. Harrison, and Arthur B. Turnure, for the motion. James Byrne and Charles A. Boston, opposed.

PER CURIAM. In our disposition of the appeal in this case we did not misconceive the question involved, as is now contended by the the learned counsel for the appellants with rather more heat than we think warranted. We held, with the courts below, that the letters of administration were clearly ancillary in character, and that, so considered, they were void, as. in securing their issue, the appellants had failed to comply with the provisions of the Code of Civil Procedure. We add to the opinion already published (183 N. Y. 55, 75 N. E. 1096) that the order directing the issue of letters contained' provisions that made the letters limited and ancillary on their face. The motion for reargument should be denied, with $10 costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

BANTA, Respondent, v. MERCHANT, Appellant. (Court of Appeals of New York. Dec. 15, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (95 App. Div. 619, 88 N. Y. Supp. 1091), entered May 10, 1904. affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. T. B. Merchant and L. M. Merchant, for appellant. Israel T. Deyo, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

BARBER, Respondent, v. DEWES, Appellant. (Court of Appeals of New York. Feb. 27, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (101 App. Div. 432, 91 N. Y. Supp. 1059), entered February 23, 1905, affirming a judgment in favor of plaintiff entered upon a verdict an order denying a motion for a new trial. Nelson Zabriskie, for appellant. Frank G. Wild, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur.

BARTLEMES, Respondent, v. LATHROP et al., Appellants. (Court of Appeals of New York. Oct. 27, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 512, 91 N. Y. Supp. 1086), entered January 20, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Clinton B. Gibbs, for appellants. Thomas A. Sullivan and Frederick G. Bagley, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY. BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. O'BRIEN, J., absent.

In re BENEDETTO. (Court of Appeals of New York. Dec. 5, 1905.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (98 App. Div. 623, 90 N. Y. Supp. 1088), entered November 17, 1904, which affirmed an order of Special Term granting a motion to cancel and discharge of record a certain judgment heretofore recovered by the appellant against the petitioner. Edward McKinley and Charles B. Mason, for appellant. Franklin Pierce, for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN. C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

BEST, Respondent, v. NEW YORK CENT. & H. R. R. Co., Appellant. (Court of Appeals of New York. Nov. 21, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 510, 91 N. Y. Supp. 1086), entered December 27, 1904, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Charles E. Snyder, for appellant. F. A. Kuntzsch, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

CULLEN, C. J., and BARTLETT, HAIGHT, VANN, and WERNER. JJ., concur. GRAY, J., not sitting. O'BRIEN, J., absent.

BIRMINGHAM TRUST & SAVINGS CO., Respondent, v. WHITNEY, Appellant. (Court of Appeals of New York. Nov. 21, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (95 App. Div. 280, 88 N. Y. Supp. 578), entered June 29, 1904. affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term with

76 N.E.-69

out a jury. J. Harry Hull, for appellant. Frederick P. James, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. O'BRIEN, J., absent.

BIRNBAUM, Appellant, v. RACICH, Respondent. (Court of Appeals of New York. Jan. 23, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (108 App. Div. 367, 95 N. Y. Supp. 1114), entered November 24, 1905, which affirmed an order of Special Term denying a motion for an order directing the guardian herein to pay over a certain sum of money to the petitioner and dismissed the proceeding. T. M. Tyng, for appellant. John Vernou Bouvier, Jr., for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, BARTLETT, and HISCOCK, JJ., concur.

BLANCHARD, Respondent, v. SAVARESE et al., Appellants. (Court of Appeals of New York. Feb. 16, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (97 App. Div. 58. 89 N. Y. Supp. 664), entered August 3, 1904, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Albert M. Yuzzolino and Lorenzo Ullo, for appellants. Isaac N. Mills, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

BLANDING et al., Respondents, v. COHEN, Appellant. (Court of Appeals of New York. Feb. 16, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (101 App. Div. 442, 92 N. Y. Supp. 93), entered February 18, 1905, affirming a judgment in favor of plaintiffs. entered upon a verdict directed by the court. Charles L. Hoffman and Henry A. Friedman, for appellant. Edward P. Lyon, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

BOSSERT et al., Appellants, v. ZIMMERMANN et al., Respondents. (Court of Appeals of New York. Feb. 13, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (99 App. Div. 399, 91 N. Y. Supp. 255), entered January 25, 1905, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. E. L. Blackman and Alfred B. Cruikshank, for appellants. John P. Everett, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, O. J., and GRAY, O'BRIEN, BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

BOYNTON, Respondent, v. SPRAGUE et al., Appellants. (Court of Appeals of New York. Oct. 27, 1905.) Appeal from a judg

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