101 N.Y. 328, Bogardus v. New York Life Ins. Co.

Citation:101 N.Y. 328
Party Name:EMELINE BOGARDUS, Appellant, v. NEW YORK LIFE INSURANCE CO., Respondent.
Case Date:January 19, 1886
Court:New York Court of Appeals

Page 328

101 N.Y. 328

EMELINE BOGARDUS, Appellant,

v.

NEW YORK LIFE INSURANCE CO., Respondent.

New York Court of Appeal

January 19, 1886

Argued December 23, 1885.

Page 329

[Copyrighted Material Omitted]

Page 330

COUNSEL

B. F. Tracy, Wm. Wirt Hewitt and Lucius McAdam for appellant. The complaint should be liberally construed. (Code of Civ. Pro., § 519; Prouty v. Whipple, 10 Week. Dig. 387.) If the facts set forth therein present any cause of action, entitling the plaintiff to any relief, legal or equitable, a demurrer thereto for insufficiency must be overruled. ( Marie v. Garrison, 83 N.Y. 23; Price v. Brown, 10 Abb. N. C. 67; Butterworth v. O'Brien, 39 Barb. 192; Conaughty v. Nichols, 42 N.Y. 86; Wright v. Hooker, 10 id. 59; Mackey v. Auer, 8 Hun, 183.) Defendant's agreement imports 'an obligation' upon 'the defendant arising out of a confidence reposed' in it 'to apply' the reserve fund 'faithfully and according to confidence.' Such an agreement constitutes a trust. ( Martin v. Funk, 75 N.Y. 141; Day v. Roth, 18 id. 453; Barry v. Lambert, 98 id. 306; Fisher v. Fields, 10 Johns. 505; Watt v. Shipman, 21 Hun, 598, 606; People v. City Bk. of Rochester, 96 N.Y. 32; Matter of Le Blanc, 14 Hun, 8; Lowerre v. Am. Fire Ins. Co.,

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6 Paige's Ch. 482; Libby v. Hopkins, 103 U.S. 309; 2 Story's Eq., § 964.)It was entirely competent for the parties to make the contract contained in the policy and at the same time to leave the meaning of certain words and expressions thereof uncertain, and to leave the explanation of such meaning, and the plan of the system under which the policy was issued to be settled by extrinsic evidence. ( Hope v. Balen, 58 N.Y. 380; Hineman v. Rosenback, 39 id. 98; Whitford v. Laidler, 94 id. 148; Chapin v. Dobson, 78 id. 74; Potter v. Hopkins, 25 Wend. 417; Beach v. Raritan & D. R. R. Co., 37 N.Y. 465; Briggs v. Hilton, 99 id. 526; Eighmie v. Taylor, 98 id. 288.) The general rule which forbids parol evidence varying the terms of a written contract has no application to collateral undertakings. ( Eighmie v. Taylor, 98 N.Y. 288; Chapin v. Dobson, 78 id. 74; Johnson v. Oppenheimer, 55 id. 293; Van Brunt v. Day, 81 id. 251; Julliard v. Chaffee, 92 id. 529; Hope v. Balen, 58 id. 380.) A failure on the part of plaintiff to pay or tender payment of the premiums did not preclude her from recovering damages for the defendant's admitted breaches. ( People v. Empire Mutual L. Ins. Co., 92 N.Y. 109; Shaw v. Republic L. Ins. Co., 69 id. 293; Atty.-Gen. v. Guardian L. Ins. and Ann. Co., 78 id. 125.) The utter failure and inability of the defendant to perform its contract from its inception having been admitted, the defendant holds plaintiff's money without any consideration therefor, and an action will lie to recover back the money thus paid without consideration. ( Weller v. Tuthill, 66 N.Y. 347; Freer v. Denton, 61 id. 492; Wright v. Hooker, 10 id. 59; Conaughty v. Nichols, 42 id. 86.) It cannot be claimed that the company had no right to make such a special contract. It made it, and has received plaintiff's money under it. The plea of ultra vires cannot avail the defendant. ( Bissell v. M. S. & N. I. R. R. Co., 22 N.Y. 262; Mad. Ave. Bap. Ch. v. Oliver St. B. C., 73 id. 90; Whitney Arms Co. v. Barlow, 63 id. 62; Kent v. Quicksilver Mining Co., 78 id. 159.) Having admitted the contract, and not having pleaded the statute of frauds, or insisted

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upon it in its answer, the defendant is deemed to have renounced the benefit of it. ( Harris v. Knickerbocker, 5 Wend. 638; Cozine v. Graham, 2 Paige, 177; Duffy v. O'Donovan, 46 N.Y. 226; Bommer v. Am. Spiral, etc., Hinge Mfg. Co., 81 id. 468; Marston v. Swet, 66 id. 209.)Even if it were true that the plaintiff has alleged an improper measure of damages, that fact cannot be taken advantage of by demurrer. ( Wetmore v. Porter, 92 N.Y. 80.)

Wm. B. Hornblower for respondent. So far as the complaint sets forth a contract different from that contained in the policy it is demurrable. (1 Greenl. on Ev., § 275; 2 Whart. on Ev., § § 920, 1014; Tayloe v. Riggs, 1 Pet. 600; Ins. Co. v. Mowry, 96 U.S. 544; White v. Ashton, 51 N.Y. 280; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 283; Imham v. Child, 1 Bro. 92; Pohalski v. Mutual L. Ins. Co., 36 N.Y. Supr. Ct. 234; affirmed, 56 id. 640; Harper v. Albany Mutual Ins. Co., 17 N.Y. 194; Lamott v. Hudson River Fire Ins. Co., id. 199, note; Howell v. Knickerbocker L. Ins. Co., 23 id. 516; Mayor, etc., v. Brooklyn Fire Ins. Co., 41 Barb. 231; Renner v. Bank of Columbia, 9 Wheat. 587; Hunt v. Rousmanier, 8 id. 211; Bk. of U.S. v. Dunn, 6 Peters, 51; Renard v. Sampson, 12 N.Y. 561; Hoare v. Graham, 3 Camp. 56; Brown v. Wiley, 20 How. 442; Specht v. Howard, 16 Wall. 564; Brown v. Spofford, 95 U.S. 482; Martin v. Cole, 104 id. 30.) The policy being set forth in full in the complaint, our demurrer admits only the agreement as set forth in the policy. So far as the allegations of the complaint purport to construe or interpret the provisions of the policy, our demurrer does not admit of such allegations. ( Buffalo Catholic Institute v. Bitter, 87 N.Y. 250; Bonnell v. Griswold, 68 id. 294; Dillon v. Barnard, 21 Wall. 430; U.S. v. Ames, 99 U.S. 35.) This is not a case in which parol evidence is required to explain technical words, or to annex incidents. (Greenl. on Ev., § § 294, 295.) The general allegation in the complaint that defendant did not keep or perform any of the conditions of said policy amounts to nothing. This

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general allegation is explained and qualified by what precedes and follows as to the particular conditions claimed by plaintiff to be contained in the policy, and claimed to have been violated. ( Clark v. Dillon, 97 N.Y. 370, 373; Speer v. Downing, 36 Barb. 522; Conger v. Hudson R. R. R. Co., 12 N.Y. 190; Bunge v. Koop, 48 id. 225; Bates v. Rosekrans, 23 How. Pr. 98; Knapp v. City of Brooklyn, 97 N.Y. 520; Southwick v. First Nat. Bank, 84 id. 429; Suprs. v. Decker, 30 Wis. 624, 633; Riley v. Riley, 34 id. 376; Drum v. Horton, 1 Pinney [Wis.], 456.)The relations of a policy-holder to a mutual insurance company are not those of a cestui que trust to a trustee, but those of a contracting party to another contracting party, and their relative rights and liabilities are to be determined by the contract. ( Taylor v. C. O. L. Ins. Co., 9 Daly, 489; Hincker v. U.S. L. Ins. Co., 16 N.Y. [ 1 Weekly Dig.] 44; Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 84; People v. Security L. Ins. Co., 73 N.Y. 114; Binley v. Eq. L. As. Soc., 61 How. Pr. 346.) The statute of frauds applies to this case so far as the ten-year dividend scheme is concerned, and hence no parol evidence would be admissible to add to or vary the terms of the contract in that particular. ( Trustees, etc., v. Bklyn. F. Ins. Co., 19 N.Y. 307; Shute v. Dorr, 5 Wend. 204, 206, 207; Browne on Stat. of Frauds, § 282; Packet Co. v. Sickles, 5 Wall. 580, 595; Birch v. Earl of Liverpool, 9 B. & C. 392; Dobson v. Espie, 2 H. & N. 81; Doyle v. Dixon, 97 Mass. 211; Peters v. Westborough, 19 Pick. 364; Hill v. Hooper, 1 Gray, 131; Boydell v. Drummond, 11 East, 156, 159; Harris v. Porter, 2 Harr. [ Del.] 27; Foote v. Emerson, 10 Vt. 338; Lockwood v. Barnes, 3 Hill, 128; Weir v. Hill, 2 Lans. 278; Broadwell v. Getman, 2 Den. 87; Tolley v. Greene, 2 Sandf. Ch. 91; Durand v. Curtis, 57 N.Y. 7; Kellogg v. Clark, 23 Hun, 393; Bernier v. Cabot Mfg. Co., 71 Me. 506.) The agreement which the plaintiff seeks to engraft on the policy was of the very essence of the contract, and provided for the method of administering and distributing the ten-year dividend funds. It cannot in any sense be considered as collateral. (Eighmie v. Taylor,

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90 N.Y. 288.) Prior written negotiations and representations are merged in the subsequent written contract as much as oral negotiations and representations are, unless expressly referred to and made a part of the written contract. (2 Pars. on Cont. 548; Vandervoort v. Smith, 2 Caines, 155, 161; Munford v. McPherson, 1 Johns. 414; Riley v. City of Brooklyn, 46 N.Y. 444, 446.)

RUGER, Ch. J.

The appellant asserts in the brief used on the argument, that the count of the complaint demurred to, states a cause of action ex contractu alone, and we are also of the same opinion.

It is essential to the legal statement of such a cause of action that it should show an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or a tender of their performance, or some adequate excuse for non-performance. This may be done by a general allegation of performance, but in some form the fact must be alleged, and if controverted, proved on the trial. (Code of Civ. Pro. 533.)

The cause of action stated in this count is for an alleged breach of the conditions of a policy of insurance dated Nov. 3, 1871, and which purports to have been issued by the defendant to the plaintiff upon the life of her husband, and is stated to be in consideration of the sum of $377.45 to them in hand paid, and of the annual premium of $377.45 to be paid 'in every year during the continuance of this policy until ten full years premiums shall have been paid. 'It further provides that 'If the premiums as above stipulated' shall not be paid, 'then and in every such case this company shall not be liable for the payment of the sum aforesaid, or any part thereof, and this policy shall cease and determine.' 'In every case when this policy shall cease and determine or become null and void, all payments thereon shall be forfeited to this company, and no action or right of action shall remain to or be maintained against the company by the assured, or by any other person by virtue of this policy or any thing connected therewith; ' 'that this

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policy is issued on the ten-year dividend system, ' and 'that the ten-year dividend period for this policy shall be completed' on the...

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103 practice notes
  • 98 N.W. 408 (N.D. 1904), 6731, Kicks v. State Bank of Lisbon
    • United States
    • North Dakota Supreme Court of North Dakota
    • February 1, 1904
    ...47; Hartley v. James, 50 N.Y. 38; Bigler v. Morgan, 77 N.Y. 312; Burwell v. Jackson, 9 N.Y. 547; Borgardas v. N.Y. Life Insurance Co., 101 N.Y. 328, 4 N.E. 522; Tamsen v. Schaefer et al., 108 N.Y. 604, 15 N.E. 731; Zeihen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Cooke v. Daggett, 2 Allen 439; ......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
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    • New York New York Court of Appeals
    • March 8, 1898
    ...the burden of proof is on the plaintiff. (Whitlatch v. F. & C. Co., 149 N.Y. 45; Code Civ. Pro. § 533; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 328.) The company was not bound by the acts of Mr. Crane contrary to the conditions of the policy. (Conway v. P. M. L. Ins. Co., 140 N.Y. 79; L. ......
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    • New York New York Court of Appeals
    • June 5, 1900
    ...O'Leary v. Bd. of Education, 9 Daly, 161; Smith v. Brown, 17 Barb. 431; Clegg v. N.Y. N. Union, 72 Hun, 395; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 328; Crane v. Knubel, 2 J. & S. 443; La Chicotte v. Richmond Ry. & El. Co., 15 A.D. 380.) The uncontradicted evidence in the case shows......
  • 172 N.Y. 519, Rhinelander v. Farmers' Loan and Trust Co.
    • United States
    • New York New York Court of Appeals
    • December 9, 1902
    ...Kent v. S. C. Co., 144 U.S. 75, 91; Van Weel v. Winston, 115 U.S. 228; Chicot Co. v. Sherwood, 148 U.S. 529; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 328; Black v. H. Ins. Co., 47 Hun, 210; Stoddard v. Treadwell, 26 Cal. 294; U.S. v. Ames, 99 U.S. 35; B. C. Inst. v. Bitter, 87 N.Y. 250.) BART......
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103 cases
  • 98 N.W. 408 (N.D. 1904), 6731, Kicks v. State Bank of Lisbon
    • United States
    • North Dakota Supreme Court of North Dakota
    • February 1, 1904
    ...47; Hartley v. James, 50 N.Y. 38; Bigler v. Morgan, 77 N.Y. 312; Burwell v. Jackson, 9 N.Y. 547; Borgardas v. N.Y. Life Insurance Co., 101 N.Y. 328, 4 N.E. 522; Tamsen v. Schaefer et al., 108 N.Y. 604, 15 N.E. 731; Zeihen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Cooke v. Daggett, 2 Allen 439; ......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
    • United States
    • New York New York Court of Appeals
    • March 8, 1898
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  • 163 N.Y. 220, Spence v. Ham
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    • New York New York Court of Appeals
    • June 5, 1900
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    • New York New York Court of Appeals
    • December 9, 1902
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