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for the wages of any person who The word “wages," as used in may be employed on board thereof this statute, is presumed to have or in navigating the same." It is a been used with its ordinary mean. re-enactment of a statute passed ing of compensation to a hired July 20, 1846, entitled, “An Act person for his services. In works to exempt canal boats from the on maritime law it is defined to be payment of fees and hospital the compensation allowed to seamoney.” This statute exempted men for their services on board a the masters or owners of canal vessel during a voyage. Abb. on boats from the payment of any Shipping, 615 ; 3 Kent. Com., 185. marine hospital tax, and con Thus its popular meaning and its versely took from the persons em- meaning in admiralty law are subployed to navigate such boats the stantially the same. To hold that right of receiving any benefit from it means towage would give it a the marine hospital fund and the strained and peculiar definition. right to libel for wages. From the A doubtful construction should title, history and object of this not prevail in order to deprive 2 statute it is clear that the expres.court of jurisdiction previously sion “wages of any person” can- granted to it. It is clear that the not mean the wages of any corpo. district courts had jurisdiction of ration, such as the libellant in the such cases before the passage of case under review appears to have the Act of 1846. Hence the intent been, because it obviously refers of Congress to deprive them of to the wages of the crew. 100 U. that jurisdiction should be clear S., 508. Moreover, persons "em- and explicit or they should be held ployed on board” of a canal boat, to still possess it. The natural such as the cook, or “in naviga- construction is that Congress inting the same,” as the crew, in- tended to deprive persons em . cluding the driver, who is not on ployed on board of a canal boat, board, cannot include a corpora- or engaged in navigating her, of tion engaged in towing such boat. the right previously enjoyed by Navigating does not mean towing. them of libelling for seamen's Navigate means to steer, direct or wages, but not to deprive a steammanage a vessel, and implies that tug of her right to libel for towage. the act is done by those on board The J. S. Woodward, 6 Fed. of the vessel itselt. Tow means to Rep., 636, explained. drag a vessel forward in the water We think the district court had by means of a rope attached to jurisdiction and that the sale in another vessel, and implies that admiralty cut off the prior mortthe act is done by those on board gage. 6 Wall., 18. The same effect of the latter. The tug simply fur- is given to liens for towage and nishes means of traction to the other services by a statute of this canal boat, which must be steered State. Ch. 482, Laws of 1862. or navigated by those on board of Plaintiff therefore was in rightful her. See 5 Ben., 60; 69 N. Y., 470. possession and defendant was a
wrongdoer in depriving him of it. / agent individually, intended for Even if, through a mistake in the payment of the first premium if bill of sale, plaintiff was in pos- the application should be approved session only as equitable owner, and a policy issued and accepted. his right to remain in possession Next day the agent transferred the was good as against defendant and note to a bona fide purchaser for as against all the world, unless it value. The company approved was the firm of which plaintiff was, the application, and sent a policy but defendant was not a member to the agent to be delivered to the nor in privity (therewith. 10 N. applicant. As to such delivery, Y., 570 ; 34 id., 253.
plaintiff testified that the agent Judgment reversed and new trial came to his house driving a horse, granted, costs to abide event. and stopped near the house,
Opinion by Vann, J.; Hardin, and took some papers from his P. J., and Follett, J., concur. pocket, and said, “I have got some
papers for you to read ;" that
plaintiff took the papers and saw LIFE INSURANCE.
on the envelope the words, “InPRACTICE.
surance Policy ;” just then the N. Y. SUPREME COURT. GENERAL
agent's horse started up furiously,
and plaintiff told the agent to hold TERM. FIFTH DEPARTMENT.
on, that this was not as they had David H. King, pift., v. The U. talked; and he said to him, “This S. Life Ins. Co., deft.
ain't as we talked; I shan't accept
if this is a policy ; I see I am Decided Oct., 1884.
trapped, and I want
my note The acceptance by an insurance company of back;" but the agent's horse kept
an application for insurance does not complete the contract so as to bind the appli moving away until it got some two cant until he has an opportunity to examine rods away, and then he said he
the policy and has assented to its terms. would bring me the note. I asked Where a party moves for non-suit, or rests his him where it was, and he said it defence on certain propositions of law, and
was at the hotel in his satchel. I his motion is denied or the law is decided against him, and he does not ask to go
told him I would take the policy to the jury, he waives his right to go to the in and lay it on the shelf, but I jury and cannot ou appeal urge that there shouldn't accept it, and he could were questions for the jury.
have it when he called for it; the Motion for new trial on excep-receipt was with it and I didn't see tions taken at Circuit, ordered him again for a fortnight. Plainheard at General Term in first in- tiff kept the policy, he not seeing stance.
the agent again until some two On the solicitation of defend weeks later, when they accidentant's agent plaintiff applied for ally met in the highway, each beinsurance, at the same time de- ing in pursuit of the other. Plainlivering to the agent his promissory tiff then said, as he testified, note payable to the order of the “Gordon, you have not done as
you agreed by me; you agreed to From the uncontradicted evi. bring that note ; I want it ; I want dence it may well be held that the it immediately. I have not got agent sought to force and impose the policy with me, but I will go upon plaintiff a policy against his home and bring it ;" and the consent. The company having reagent replied, “I forgot your note, ceived the avails of the note, it is but I have got it up there and I bound to return the same to plainwill bring it to you in a day or tiff, there having been no considtwo."
Plaintiff asked, "Can Ieration. depend upon it ?” Gordon an Defendant waived the right to swered, “I will do it as sure as I go to the jury. 82 N. Y., 443; 90 live." Plaintiff further testified id., 649 ; 18 id., 558. that next day he went to look for Judgment for plaintiff on verGordon and could not find him. dict. This action is to recover the Opinion by Barker, J.; Smith, amount of the note, the receipt of P. J., Haight and Bradley, JJ., which was acknowledged by de- concur. fendant. At the close of the evidence defendant moved for non
DEEDS. PARTY-WALL. suit, which was denied. Defendant then moved for the direction of a N.Y. SUPREME COURT. GENERAL verdict in its favor, which was TERM. FIFTH DEPT. denied, and exception was taken to each refusal. Verdict was di
William P. Merrill, respt., v. rected in plaintiff's favor.
Edmund F. Clark et al., applts. Hegeman & Buell, for deft.
Decided Oct., 1884. E. A. Nash, for plff.
A right to build into the wall of a building, Held, That the jury would have
for support, is an incumbrance within the been justitied in finding that the meaning of a covenant against incumpolicy was not delivered and accepted in consummation of a con
Appeal from judgment entered tract for insurance. The applica- | upon decision of the court at Cirtion
cuit. inquiry by the applicant to learn The action was brought to reupon what terms the company cover damages for the breach of a would insure his life. The appli- covenant against incombrances. cant did not propose the terms It appeared that one Goodrich of a complete contract requiring had a right to build into the south only the company's formal assent wall of the brick store standing on to constitute an agreement. Plain the premises conveyed to plaintiff, tiff was not bound to accept the pol- and that the right extended during icy, if the company should approve the existence of the wall. The of the risk, until he had an oppor-court found that this was an intunity to ascertain its terms and cumbrance on the premises within conditions,and assented to the same. I the meaning of the covenant, and
that it reduced their value to the on credit, in consideration of such an order, extent of $250. The court also
and a parol agreement that the payees of
the order shall be entitled to demand and found that a private right of way
receive certain installments to become due existed over the premises at the from the drawee, is a good consideration time of the conveyance, but it had for a promise by the latter to pay such since been abandoned, and that
installments in satisfaction of the payees'
claims, and renders him liable for a wrong. plaintiff sustained no substantial
ful payment to the drawer. The promise injury by reason
is to pay his own debt. awarded only nominal damages The making of the agreement having been therefor.
assumed on the trial, the insufficiency of Thompson & Spencer, for applts.
the proof establishing it cannot be raised
for the first time on appeal. John H. White, for respt.
Held, That the tindings were sup Appeal from judgment dismisported by the evidence, and that sing plaintiff's complaint. there was a breach of the covenant Suit was brought to recover a against incumbrances, in both certain amount due from defendcases.:
ant to L. & G., contractors for Judgment modified by striking the erection of a parsonage, plainout other items of damage. tiffs claiming under an alleged Opinion by Corlett, J.; Smith, equitable assignment.
. L. & G. P. J.; Barker and Bradley, JJ., contracted to erect the builling concur.
for $1,950, to be paid in installments as the work progressed, and
to be completed October 15, 1882. ASSIGNMENT. CONSIDERA- Work was commenced July 1, but TION.
was abandoned September 15, 1882. N. Y. SUPREME COURT. GENERAL On the 20th July $700 was due the TEPM. FIFTH DEPT.
contractors, who were indebted to
plaintiffs in the sum of $437 for Seth G. Rowley et al., applts., materials used in the building of v. The First M. E. Church of the house. It was agreed that L. Medina, respt.
& G. should receive the $700, and Decided Oct., 1884.
plaintiffs should wait until future
payments fell due, which should An order not drawn upon or designating any particular fund, nor specifying any amount
be paid to plaintiffs until the to be paid, but merely directing the pay future as well as present indebtedment of “the amount of our account with
ness to them for materials furthem" (the payees), may, by virtue of a nished and to be supplied should parol agreement between the drawer and
be fully paid; that plaintiffs should payees, and notice thereof to the drawee, operate as an equitable assignment of notify defendant of the amount moneys to become due, so far as may be which should be their due, as ocnecessary to satisfy the amount of the casion required, and that L. & G. present and any future claims that may be
should give an order on defendant due to the payees of the order. An agreement to forego the payment of a
to carry out this arrangement. present claim and to sell and deliver goods
The order was dated the same day,
addressed to the “ Committee of 89 id., 508, 518–9; 14 Hun, 355: the M. E. Parsonage,' and re 115 Mass., 374. quested them to pay plaintiffs Plaintiffs’ agreement to post"the amount of our account with pone the payment of their demand, them," upon which plaintiffs and to continue to supply mate. wrote in pencil, “Amount of L. rials for the erection of the build& G. account with us to this date, ing, and to rely for payment out $437., R. & E.," and presented the of future installments, constituted same on that day (but after the a good consideration for defend. $700 had been paid to L. & G.) to ant’s promise. The moment an the committee and informed them installment fell due it equitably of said arrangement, who agreed belonged to plaintiffs, and defend. to pay plaintiffs in pursuance ant had no right, after its agreethereof, and kept the order. The ment and the notice it received, to next installment was paid to L. & pay the money to the contractors. G. without the knowledge or con It had agreed to pay its own debt, sent of plaintiffs, though they re when it arose, to plaintiffs. ceived the one following, leaving a
Defendant contended that the balance due plaintiffs at the time only evidence given of the agreeof abandonment of the work. De. ment between plaintiffs and the fendant had been notified from contractors was a conversation betime to time of the amount of tween plaintiffs and defendant at plaintiffs' claim. Plaintiffs claimed the time of the delivery of the that the order, under the circum- order, and that the actual making stances, operated as an equitable of that agreement was not proven. assignment of future installments But this point was not made at the when they became due, and that trial, and it was assumed that defendant was not protected by plaintiffs truly stated the agreesucb wrongful payment. The court
ment to defendant's agents. dismissed the suit, on the ground
Held, Untenable on appeal. that as no particular fund was Judgment reversed and designated in the order, it could trial granted. not operate as an equitable assign Opinion by Corlett, J; Smith, ment.
P. J., Barker and Bradley, JJ., Brundage & Chipman, for applts. concur. S. E. Filkins, for respt. Held, That the facts proved
EVIDENCE. established a good equitable assign-N. Y. SUPREME Court. GENERAL ment of the installments to become
TERM, FIFTH DEPT. due so far as to satisfy plaintiffs' present and future claims against
Robert Gilbert, respt., v. John the contractors. 61 Barb., 489; B. Manning, applt. 64 id., 593; 1 Keyes, 193; 25 N. Decided Oct., 1884. Y., 239: 60 id., 438; 77 id.,
The admission, against objection, of a party's 45; 81 id., 454; 83 id., 318; declarations in his own favor made to an