The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-10-08
COUfT OF APPEALS.
Marine characterization of Warrantcc by
Visiting Prohibited Ports.


Visiting Prohibited Ports.
Before Chief Judge Hunt and full Bench.
Charles r. Day, Plaintiff ana Appellant, Us. The
oriental Mutual assurance Company, Defenda,,ts
ana Respo1dents-This action was brought on
time policy OF insurance on the schooner Alice Day
for one year, from March 26 1866 at noon, to March
20 1857, at noon. The policy contained the follow
ing Observation-Disclosures not TO use ports OR
places In Texas except Galveston nor foreign ports
and places IN the Gulf of Mexico.n The jury found
that while this policy was In force the vessel went
70 C0atzacoacoS III the Gull OF Mexico In violation
OF the WARRANTED already cited, and that she re-
turned IN safety and subsequently destroyed by
tne perlls insured against at Apalachlcola on the
3lst Of August 1856. The plaintiff mad previously
applied Tor PERMISSION To visit Coatlacoa,cos, but
was refused by the company. In an actlon to re-
cover the insurance ii was claimed by the company
that the vessel, In visiting prohibited ports, abso
lutely voided the policy Notwithstanding that 1t did
not appear tnat she Was lost by any pe1is resulting
directly from that violation OF the policy Judgment
was given Ill favor or defendants, which was con.
frmed at Geaerai Term. from whence the appeal is
now taken TO tins court me appellant claims that
the defendants are bound to show that the loss OF
the vessel resulted directly or Indirectly from her
visit to the prohibited ports. Respondents claim
that such visits 10 prohibited ports volded the policy
absolutely. DECISION reserved
Snbseauent Conditions - Restrictions on
-'---sSfS 70 Lands.
Joseph Plumb u.s. Oaren ". 1t,bbs.-The plaintiff,
Plumb sold lot Of land In Cattaraugus village to
the defendant in fee OF $780, in 1s47, with proviso
Or condition after the habendum clause that the
grantee his heirs or assigns should not manufacture
or sell any intoxicating liquor on the lot unless
Joseph Plumb, his heirs or assigns should sell other
land in Cattaraugus without such condition, or
should themselves manufacture or sell liquor. or
should permit the same on any land in the village
For violation OF the provsO there was to be for.
fetnre. Defendant did sell Intoxicating liquors on
the lot, and plaintiff claimed Q forfeiture.
The defence showed that IN 1858 the plaintiff sold
some lots In the village with the same conditions;
but the grantees resod The property to Others with
out the conditions
The pIantifr also sold lots to one Mattox on the
same condition which Mattox violated, and Was not
eectcd. The defence also showed that In, another
Case the paintiT sold with the condition, but his
grantee resold wthout the condition, and that the
grantee sold glass OF ale In that lot IN presence OF
the palntif. These three facts the defendant relied
on as showing breach OF the provisO by the
was absolutely void. The court below ruled that the
acts Of PLAINTIFFS grantees being IN violation Of the
condition OF their graft did not discharge the con.
dition Of the decd to the defendant and also over
ruled the general defence.
The defendant appealed from the Judgment, and
the general FERN affirmed the judgment on the
ground that o condition subsequent limiting the use
Of property, # not contrary to law, was good.
mitted their points. The defendants made an
elaborate argument on the question OF the yaldlty
OF Inc condition II was argued that CONDITIONS n SUB
tanned when repayment 10 the nature OF tue estate
granted iniringed on the essential enjoyment and
where such conditions were void were cited; that
che case came within none OF the authorized excep
lions or within the reason OF such exceptions. One
Of those exceptions that every act which is pro-
hibIted by law, or which doth wrong a man. may
prohibit by condition; bat the sale Of liquor not
prohibited by law and this condition assumed the
prerogatlve OF the state TO make law. As for the
distinction taken by the General Term that the
condition only affected the use OF land,
the use Of land made up Its whole
value, and the distinction was untenable. Counsel
distinguished between this and the cases In which
lance Of street 'front.' that being species Of dedi-
cation TO the public by which adjoining property OF
the grantor benefited, and from the pre- nibtion
of certain uses of property which might 1Djure
health the piainlin. In that The condition in this
case IL enforced, secured no benefit to the plaintiff.
Counsel also commended that grantees were assigns
In the meaning OF the provisor aud that the selling
OF liquor In his presence without objection was per-
hitting.
The court reserved its decisiou