14 N.Y. 85, New York Cent. Ins. Co. v. National Protection Ins. Co.

Citation:14 N.Y. 85
Party Name:THE NEW-YORK CENTRAL INSURANCE COMPANY v. THE NATIONAL PROTECTION INSURANCE COMPANY.
Case Date:June 01, 1856
Court:New York Court of Appeals
 
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Page 85

14 N.Y. 85

THE NEW-YORK CENTRAL INSURANCE COMPANY

v.

THE NATIONAL PROTECTION INSURANCE COMPANY.

New York Court of Appeal

June 1, 1856

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COUNSEL

John Willard, for the appellants.

N. Hill, Jr., for the respondents.

DENIO, C. J.

It appears from the opinion of the supreme court, with which we have been furnished, that no doubt was entertained by the judges of that court but that the contract of insurance upon which this action was brought was invalid, nor but that it ought to have been so held, if the defendants had not committed a fault in pleading, by which, as it is decided, they had lost the advantage of that defence. It appears, however, that all the evidence to show the position which Stevens occupied when he executed the policy of insurance, as the agent of both parties, was received without objection; and that as to that question, there was no allusion to the pleadings in the course of the trial. This ground was taken by the defendants' counsel on the motion for a nonsuit and again after the evidence had closed, and yet no answer based upon a supposed defect in the defendants' pleadings appears to have been suggested by the counsel or by the court. The answer does deny the fact of the contract, and that Stevens was the agent of the defendants, or was authorized to sign the policy of insurance. I suppose that, in the mind of the pleader, this denial was predicated of his supposed incompetency to act as the agent of the defendants in a contract when he was at the same time acting as the secretary and agent of the plaintiffs. If the principle admitted by the supreme court is correct, it sustains the general denial in the answer; though it is obvious that it would have been more frank to have averred the special facts out of which his incompetency arose. There is, however, no reason to believe that the plaintiffs were misled or surprised by the defence set up under the general pleading.

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If they had been, they would naturally have objected to the evidence; and it would then have been competent for the defendants, if the point had been ruled against them, to move for an amendment, or for such other relief as would secure them from the loss of their defence. It was argued by the plaintiffs' counsel that the...

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