Virginia Home Ins. Co. v. Sundberg

• Court: U.S. District Court — Southern District of New York
• Citation: Virginia Home Ins. Co. v. Sundberg, 54 F. 389 (S.D. N.Y. 1893)
• Decision Date: 06 February 1893
• Parties: VIRGINIA HOME INS. CO. v. SUNDBERG.

54 F. 389

VIRGINIA HOME INS. CO. v. SUNDBERG.

United States Circuit Court, S.D. New York.

February 6, 1893

Geo. A Black, for plaintiff.

Goodrich Deady & Goodrich, for defendant.

LACOMBE Circuit Judge.

Upon more careful consideration of the points urged upon the reargument, I am led to the conclusion that in some respects I erred in my former decision. ^[1] The fifth article of the answer is an answer to the fourth article of the libel. It admits specifically, separately, and distinctly some of the averments therein contained, and concludes as follows 'He denies the other allegations of the fourth article as therein alleged, and refers to the allegations of the eighth article of the answer. ' Such eighth article is a narrative of events in some respects like the libelant's, in some differing therefrom. Except for the denial above quoted, the following allegations of fact in the fourth article of the libel are neither admitted nor denied, nor is there a denial as to them of knowledge or information sufficient to form a belief: (1) That the Newport passed out to sea 'through the Swash channel' in part; (2) that she so passed in part through the South channel;' (3) that she so passed on a 'course of about S.E. 1/2 S.;' (4) which was the 'usual channel course;' (5) that 'at 5:35 P.M. she had Sandy Hook bearing abeam;' (6) that 'at 5:40 P.M. she had Sandy Hook bearing west;' (7) that when she passed Scotland light-ship at 5:50 P.M. 'it bore west;' (8) that at such time it was 'about one quarter of a mile distant; (9) that she took her course of about S. 1/2 W. 'when distant about one quarter of a mile from Scotland light ship, bearing west.' The above-quoted general denial is conjunctive, and does not severally deny these averments. Under the rules and practice, I am satisfied that libelant is entitled to an admission or denial of each distinct and separate averment in its libel, separately and distinctly; and the fifth article of the answer does not thus answer the fourth article of the libel. The exception to it is therefore sustained

The third article of the answer avers that the person for whose benefit this action is prosecuted 'had full notice and knowledge of and participated in the prosecution' of a former action. To this libelant excepts because it does not state what kind of notice is intended. If, as seems probable (and which was the view I took of the averment on the original...