The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-05-28
Important % Insurers.
SUPREME COURT.
Refore Hon. .Iudpe Roosevelt.


MAY 25.-,oseph Ripley Us. the Aston Insurance Com
pany-This Court at general term having decided that
stipulation requiring the insured TO sue, II at all in
twelve months, although binding originally, may be
waived by the language conduct Of tho parties and the
jury the second trial having found that in the pre-
sent instance there such waiver, now to in
quire whether that finding and the rulings which led TO
warranted by the law and the testimony twelve
months statute Of limitations although assented to the
the parties operates fOrfeiture s therefore TO be
construed strictly Slight evidence Of waiver in other
Of forfeiture will be sufficient to defeat its appca
ton. "A positive act of the defendants, intended 10 in
duce postponement not necessary Silence the sub
ject, the midst Of negotiations fer settlement during
the year, however intended, held by the General
Term to be competent evidence TO 60 TO the jury and
competent its weight was 70 be determined by them The
Court especially 10 aid Forfeiture and very harsh one,
too will not scrutnize very closely their yer.
dict such q point: nor, l may add, the rulings
Of the Judge a. the trial. unless very clearly erroneous
Of years limitation, which was in effect disposed
of the order directing the second trial shall proceed TO
consider the its merits II is commended by the
company that by stipulation In the policy the
insured keep wstcbman 10 the mill every night
that the less sued for occurred in the night me that
there Waterman the premises when ii occurred
and consequence that the company are not bound 10
indemnify. The fire, is conceded, took place on the
ornng Of the Sh OF April 1S49 between three and four
o'clock, ana Of course in the night time It was, how
ever, aSunday and the Sabbath it s contended by
press well by custom, excepted from the
stipulaon-a position which, as il seems to me on both
grounds is we'll taken. The policy based writ.
survey in the form Of question and answer To the
question whether the mill was left alone AT any time
after the Waterman goes Of duty in the morning,
the parties answered. "Ony at meal times, aud on the
Sabbath and other days when the mill not !"
Literally construed this language perhaps imports that
the wa;chman, although of duty the Sabbath, only
80 during the same hours as on other days. construc
ton which, it s supposed, is confirmed by the 10
another inerr0gatory, in which the parties, when asked
whether there Is Waterman in the mill during the night
respond without exception, the,s Waterman nights "
Now seems to me, that the parties had the idea Of
the Sabbath their minoe and all the nterr0gatories
written down aud all together read before any
anfwered, ii had been Intended that any por
the expression used instead OF being merely "nghts
would have been every night perhaps still stronger
every night Sundays included" Suppose speaking Of
pre- emnenty industrious mechanic, even professional
person understand that the expression intended
convey the idea that he worked after IL P on Satur
day and before IL P. n on Sunday All language be Il
ever SO general has s implied mitatons-and even the
twenty -four hours, and day Of the IT. then
he who ia forever at work. rests Sundays and
daylight well after, he who only works q of nights
AS to 30 much Of the loss as arose from the
Of the Btock the indemnity by the express terms OF the
policy not 70 the mill owners but to Sheldon
Co., the owners OF the stock The mill owners there
FORE they desired to do could not assign the
claim to the plaintiff They occupied the position 10
that respect mOrtgagors, taking policy 10 ther
name, but with the customary clause, Gloss, any paya
case-the mortgage being unsashed-coud maintain
action. Sheldon b Co., far respects the stock
not only the sole parties in interest," but the sole parties to
whom the insurers, in case of loss had have
by the terms Of the policy contracted to pay new
trial must therefore, be granted, unless the plaintiff
valves that portion OF the damages found by the jury,
which applicable solely to the stock that be waived,
judgment for the balance should be entered for the plain