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

MAY 25.-Joseph Ripley The Asor Insurance Com
pany-This Court 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 the parties and the
jury the second trial having found that in the pre-
sent instance there such waiver, 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 by the
the parties operates forfeiture. is therefore TO be
construed strictly Slight evidence Of waiver in other
Of forfeiture will be sufficient to defeat appca-
ton. "a positive act of the defendants, intended 10 in
duce postponcment Is not necessary Silence on the sub
ject the midst Of negotiations fer settlement during
the year, however intended was held by the General
Term to be competent evidence to go TO the jury and
Court especially aid Forfeiture and very harsh one
too, will not scrutinze very closely their
dict on such point nor, ! may ada, the rulings
smssing, then the question Of the twelve months In
Of SIX years limitation which in effect disposed
of the order directing the second trial shall proceed
consider the it's merits. 1t s commended by the
company that by stipulation in the policy the
insured were TO keep watch the mill every night
there Waterman the premises when ii occurred
and consequence that the company not boud 10
indemnify The fire, is conceded, took place the
morning Of the sh Of April l849 between three and four
o'clock, and Of in the night time. was, how
aSunday; and the Sabbath, II is commended by
press terms well by custom, excepted from the
stpulation-a position which, it seems to both
grounds, is well taken. The policy was based writ
ten survey in the form of question and To the
question whether the mill was left alone at any time
after the Waterman goes OF duty ia the morning,
the parties answered, "Ony at meal times aud the
Sabbath and other days when the mill Goes not run."
Literally construed this language perhaps imports that
the wachman although of duty the Sabbath only
during the hours other days-a construc.
ton which, it s supposed is confirmed by the 10
another nterrogatory in which the parties, when asked
whether there is Waterman in the mill during che night
respond, without exception, thee is Waterman nights
Now TO me- that the parties had the IDEA of
the Sabbath their mnoe and all the inerrogatories
written down aud ali together read before any
anfwered If 1t had been Intended that por-
ton Of the Sabbath to be violated by serve labor
the expression used instead OF being merely "nghts"
would have been every ngh perhaps still stronger
every night, Sundays included Suppose, speaking Of
pre- eminently industrious mechanic even profes sona
man. should say that he worked hard nights would
any understand that the expression intended
to convey the idea that he worked after IL Satur
day and before IL p n on Sunday? All language be It
ever SO general has lis implied mitaons-and even the
twenty -four hours, and some day Of the then,
he who forever at work rests Sundays and before
daylight as well a. after he who only works Of nights
must certainly be regarded as having the privilege
AS to much Of the loss from the destruction
Of the "sock the indemnity by the express terms Of tho
policy payable, not 10 the mill owners but TO Sheldon
Co., the owners Of the stock The mill owners there
FORE they desired to do 3d. could not assign the
claim to the plaintiff They occupied the position
that respect mortgagors, taking policy in their
name but with the customary clause Loss, any, paya
casethc mortgage being unsas6ed-coud maintain the
action. Sheldon Co.. 60 far respects the stock
not only the sole parties In interest," but the sole parties to
whom the nsurers In case of loss, had have
trial must, therefore, be granted unless the plaintiff
valves portion OF the damages found by the jury
which applicable solely to the stock If that be waived
judgment for the balance should be entered for the plain