RECK v. PHENIX INS. Co.

(Supreme Court, General Term, First Department. November 7, 1889.)

1. MARINE INSURANCE-REGISTERED TONNAGE.

A warranty not to load a vessel more than her "registered tonnage" is a warranty not to load more tons of weight than the ship could carry, as entered upon the official record as the ship's tonnage.

2. SAME.

An American ship was registered at the custom-house at 916 71-96 tons. She was transferred to the Hanoverian flag, and then was registered at 792 tons. Held, that a vessel's registered tonnage is that of her home port, and a warranty made after such transfer, not to loud above her registered tonnage, was broken by loading her with 901 tons.

Motion for new trial on exceptions.

Frederick Reck sued the Phoenix Insurance Company on a policy of insurance. Judgment was rendered for plaintiff. For opinion on former motion in the case, see 5 N. Y. Supp. 543.

Argued before VAN BRUNT, P. J., and DANIELS and BARRETT, JJ.
George A. Black, for the motion. Joseph A. Shoudy, opposed.

VAN BRUNT, P. J. The only exception which it is necessary to consider on this motion is that which was taken by the defendant to the direction of a verdict in favor of the plaintiff by the court. Neither party asked to go to the jury upon any question of fact, and both asked the court to direct a verdict. Under this state of the record the only question presented by the exception to be mentioned is whether there is any evidence to sustain the direction given. This case has been four times tried at the circuit. Upon each of the three trials preceding the one now under consideration the complaint was dismissed, and such dismissal was declared by the general term to be erroneous, and all the questions raised upon this appeal, except the one of overloading, have been settled against the defendant, and even this it is claimed by the plaintiff was also determined upon the last appeal adversely to the defendant. This action is brought to recover for a loss upon a policy of insurance issued in the year 1865 upon the ship Elise Ruger. Among the other provisions of the policy is one whereby the assured warranted that the ship should not be loaded more than her registered tonnage with lead, marble, coal, or iron on any one voyage. The evidence showed that the ship sailed with a cargo of coal of 901 tons, each ton weighing 2,240 pounds, and the question presented is whether thus laden there was a breach of the warrranty above mentioned.

What is meant by "registered tonnage" in the policy? "Tonnage” is defined to be "the cubical contents or burden of a ship in tons, or the amount of weight which one or several ships will carry. "Ton" is defined to be "a certain weight in pounds," or "a certain weight or space by which the burden of a ship is estimated." "To register" is "to enter in a register; to record formally and distinctly; to enroll; to enter in a list." A "register" is defined to be "an official record." The "registered tonnage" of a ship, then, appears to be the cubical contents of the ship expressed in tons, or the amount of weight which she will carry as entered upon some official record. That cubical contents could not have been intended by the parties in the clause in question seems to be apparent from the language of the warranty: “Warranted not to load more than her registered tonnage with lead, marble, coal, or iron on any one passage." A cube of lead would weigh very much more than the same cube of coal, therefore it was not space to be filled which was referred to, but weight, and by "registered tonnage" the parties understood to be meant the number of tons of weight which the ship could carry as entered upon the official record as the ship's tonnage.

This brings us to the real question in the case,—what was the official record of this vessel's carrying capacity at the time of the issuance of this policy? The Elise Ruger was formerly an American ship, built at Mystic, Conn., and appears to have been registered at the New York custom-house by the laws of the United States, and a certificate of registry issued to her. Her tonnage as then registered was 916 71-96 tons. Prior to the time of the issuance of the policy of insurance in question the ship was not remeasured here, nor did she ever receive any other certificate of American registry. In 1862 or 1863 the ship was placed under the flag of Hanover, and was sailing under such flag at the time of this insurance. When placed under the Hanoverian flag, the ship received a new register, which was lost with the vessel. In the ships' register book kept at Stade (the county-seat of the port of Geescumunde, the home port of the vessel) the tonnage of the vessel is stated to be 351.97 commercial lasts, which appear to equal 792 tons. It is true that the plaintiff claims that there is evidence showing that 351.97 commercial lasts are the equivalent of 1,056 tons, but an examination of the evidence upon which this claim is founded shows that this apparent difference arises from a change in the rules for measurements adopted by the German Empire, July 5, 1872, long after the loss of the vessel in question. If the record of the vessel's carrying capacity as found in the New York custom-house at the time of the issuing the policy is to be considered as the one referred to, then there was no breach of the warranty. If, however, her Hanoverian register is to

control, then there seems to have been a breach.

At the former trial, there being no evidence of any other registry, the New York custom-house registry was deemed to have been referred to; but upon this trial it has been made to appear that the vessel was not then sailing under that registry; that she had abandoned her character as an American vessel; that she was sailing under a foreign flag; had procured a new registry, upon which her tonnage or carrying capacity was stated as 351.97 commercial lasts, the equivalent of 792 tons. It seems to us that this evidence has entirely changed the effect of the proof as it appeared upon the previous trial. The parties, in speaking of the "registered" tonnage of a vessel, must have referred to that tonnage which appeared upon the papers under which the ship was then sailing, and not to the tonnage as contained in a register which had been abandoned, and for which a new one had been substituted. A ship's register is a well-understood paper or document. It is a license from the government whose flag she flies and sails under, and contains particulars for her identification. It is the ship's passport, issued by the government whose citizen she is. Among the items stated in this register is her carrying capacity or tonnage, and this is taken from the entry upon the official record of her home port, and hence is her registered carrying capacity or tonnage. The ship's then registered tonnage, therefore, seems to be that which is entered upon the official record of her home port, and applying this rule the warranty seems to have been broken, she being loaded with 901 tons, when her register allowed only 792 tons. The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.

In re PLUMB.

(Supreme Court, General Term, First Department. November 7, 1889.) REFERENCE-OBJECTIONS WAIVED.

On motion to appoint a referee in place of a deceased referee, whose appointment has been affirmed on appeal, objections to the merits of the original application cannot be considered.

Appeal from surrogate's court, New York county.

Application by Sarah Lenita Plumb, a minor, for the removal of James Neale Plumb as general guardian of her person and estate. For former re

ports of different phases of the litigation, see 4 N. Y. Supp. 135, 831. From an order appointing a referee in place of a deceased referee, James N. Plumb appeals.

Argued before VAN BRUNT, P. J., and BARRETT and DANIELS, JJ. Vanderpoel, Cuming & Goodwin, (Henry Thompson, of counsel,) for appellant. Turner, McClure & Ralston, (David McClure, of counsel,) for respondent.

VAN BRUNT, P. J. This general term decided upon an appeal from the order directing a reference, and appointing the referee, who has since died, that the surrogate had the power to make the order appealed from. 4 N. Y. Supp. 135. The referee named in that order having died, this motion was made to appoint some suitable person as referee in the place of the deceased referee. Upon the hearing of this motion the counsel for the appellants attempted to raise objections to the sufficiency of the petition which, upon the previous appeal, this court held would have been fatal to the original application had they been made before answer was filed to the petition. It seems to be clear that such objections cannot avail upon this motion. The proceeding was before the surrogate. He had determined that a reference was necessary to take proof, and this determination has been affirmed upon appeal. The referee originally named having died, the only question before the surrogate was the naming of another in his place. The determination to refer having been upheld and being finally determined to be proper, no objection going to the merits of the application can be entertained. As was stated upon the previous appeal, this objection comes too late. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

JAMES . MCCREERY.

(Supreme Court, General Term, First Department. November 7, 1889.) DEFAULT JUDGMENTS-OPENING-LACHES.

A default will not be opened on motion, when the party making the motion has been guilty of great laches therein.

Appeal from circuit court, New York county.

Action by Edward F. James against James McCreery. Plaintiff was defaulted. From an order denying his motion to open the default he appeals. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.

E. F. James, pro se. for respondent.

Dunning & Fowler, (W. F. Dunning, of counsel,)

VAN BRUNT, P. J. The appeal in this case seems to have been based upon the idea that a default is to be opened in every case as a matter of course. The motion is, we think, a mistaken one, and such motions should not be granted where the party applying has been guilty of laches, or where the denial of the motion will not do, under all the circumstances, an irreparable injury to the party in default. There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff in this case has been guilty of great laches in the making of this motion, and should be remitted to a new action for the enforcement of his rights, if he has any. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

UNITED STATES LAND & INVESTMENT Co. v. BUSSEY. (Supreme Court, General Term, First Department. November 7, 1889.) INTERPLEADER-LACHES.

Where an action of replevin was brought in January, 1889, and defendant appeared and made a motion in the case, February 4th, and knew at the time that a non-resident was the real party in interest, a motion by defendant to interplead, and substitute the non-resident as defendant, made in June, was too late.

Appeal from special term, New York county.

The United States Land & Investment Company sued W. G. Bussey in replevin, to recover possession of a mortgage bond. From an order of interpleader substituting H. A. Herbert, a non-resident, as defendant, plaintiff appeals.

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.
Waller S. Coroles, for appellant. W. G. Bussey, for respondent.

VAN BRUNT, P. J. We are of the opinion that this motion should not have been granted because of the laches of the defendant. The defendant was bound to move with diligence if he desired to withdraw himself from the contest upon the ground of no interest. In the case at bar the action was commenced January, 1889, and the property in dispute was taken possession of by the sheriff. The defendant duly appeared, and excepted to the sufficiency of the securities named in the undertaking given in behalf of the plaintiff, and as early as February 4, 1889, made his motion requiring the plaintiff to file additional or larger security. Even motion to interplead was not made until June, 1889. During all this time the defendant was as well aware as he now is that Herbert was the party really interested, and yet he made no move to have Mr. Herbert substituted as defendant, although he announced his intention so to do in his affidavit made February 4, 1889. It is true that the defendant states in his affidavit at the time of the commencement of this action the said Herbert was absent in Europe, but it is nowhere stated how long prior to the making of this motion to interplead he had returned. From the statements contained in the affidavits presented by the plaintiff upon this motion it would appear that such return had taken place at a period long anterior to the motion, and yet no effort to obtain this substitution seems to have been made, but the defendant went on litigating the action in his own name. It is true that there appears among the moving papers a written demand made by Herbert upon the defendants for the property in question, dated June 4, 1889, but it is apparent that this paper came into existence for the purpose of this motion, and conveyed no information to the defendant of any claim of which he had not been fully aware at the time of the commencement of this action. The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied. All concur.

CLAPP v. CLAPP et al.1

(Supreme Court, General Term, First Department. November 7, 1889.) RECEIVERS-REMOVAL-LIABILITY TO SUCCESSOR.

A receiver who, by failure to properly discharge the duties of his office, has become liable to account for the loss resulting from his neglect, been removed, and the entire estate has passed into the hands of his successor, is accountable to his successor, and not to the creditors.

Appeal from special term, New York county.

On reargument. For former opinion, see 1 N. Y. Supp. 919.

Argued before BRADY, P. J., and DANIELS, J.

'Affirming 1 N. Y. Supp. 919.

Wheeler H. Peckham, for appellant. A. C. Brown, William Mitchell, and George C. Holt, for respondents.

DANIELS, J. This case was very fully considered when it was before this court on the first hearing of the appeal. Clapp v. Clapp, 1 N. Y. Supp. 919. And a re-examination of the evidence contained in it fails to entitle the respondents to any greater measure of relief than that which has already been allowed. The property in the hands of the receiver was directed to be transferred and delivered over to his successor. This was done under an order of the court, before which the parties to the action had an opportunity to be heard. And having been made in that manner it protected the receiver who was removed in the delivery of the assets of the estate, so far as they remained under his control, to the person who succeeded him in the same office. This subject was examined in Herring v. Railroad Co., 105 N. Y. 340, 12 N. E. Rep. 763, and in Sullivan v. Miller, 106 N. Y. 635, 13 N. E. Rep. 772, and that effect was given to orders obtained from the court in this manner. After the property was delivered over pursuant to this direction, it was in the hands of the succeeding receiver for the benefit of the creditors of the estate. They were entitled to resort to it for the payment of their debts, or so much of them as the assets would be able to pay. What was left against the appellant, who was the preceding receiver, was a liability to account for and pay over to his successor so much as the estate had been diminished or lost by his inattention, carelessness, or misconduct. And no authority has been found or cited imposing any greater degree of liability than this upon him. To that extent he should, as has already been held, account and indemnify this estate for the loss it has sustained through his mismanagement and misconduct. But before any further direction can be made for the payment of the loss so sustained, it must be ascertained by proof showing how far the assets diminished in value, or were lost, owing to the misconduct of the appellant as receiver. The proceeding in the end, so far as he may be liable in case of his non-payment of the amount in this manner to be proved against him, will be one for his punishment by way of contempt. And that never is permitted in a civil proceeding without the fact being first established that the party has become liable to such punishment, and the extent to which it may be inflicted upon him. The directions which have already been given for the ascertainment of the extent of the loss, and of the liability of the receiver to respond, are as favorable as the circumstances in the case will justify. He can very obviously not be held liable for the assets, or their value, as they passed into the hands of his successor under the order of the court. Their full benefit was secured to the creditors by this transfer to his successor. And all that remains to complete the proceeding is to ascertain the loss occasioned to the estate through the misconduct of this receiver; and, when that has been ascertained, to provide, in the manner the law will allow that to be done, for its payment. The extent of the liability is reasonably free from doubt, and the proceedings by which it is to be enforced and completed seem to be free from all reasonable ground of uncertainty. No change can be made in the direction which has already been given, and an order should be entered reaffirming that direction, with costs.