The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-10-06
COURT Of AppealS.


the insurance company were owners OF the snip
Jamestown from the carly part OF the year 1857
until her loss in Mobile Bay, In the fail
of the year 1859. This Joint ownership is
not denied existing. Two nominal
transfers IN July and October, 1862 are set up but
are deemed to be immaterai. Tie defendants,
Slate 4 Lyles, under the firm OF State 4 Co.. during
all the period were ships husbands, authorized 10
keep the ships frelgals insured account Of the
owners, to receive her earnings and make her dis
bursoments. During the running OF the ship under
this arrangement she became indebted to irm OF
which the painutr was copartnor, conducted under
the name OF Bird, GILLIAN Co., OF Liverpool IN
balance OF account for disbursements OF the ship,
verted in any Of the answers. Tnis account
had been rendered TO Slate d Co., the balance
s ses5sSt 10 Br aeS ne Co. ofs' Sst II
remained unpaid. This Is claim Of the plaintiff.
slate Co., receiving the ships accounts and pro-
ceeds OF her earnings from December 1856, to JuY,
1859 he time OF sailing her last yoyagel had become
indebted 20 Gillian, survivor OF Bird IN the sum or
1857 So being the result OF the current voyages OF
the snip. THIS Is the second claim or the paintif.
slate 81 Co. were authorized 10 make assurances and
the sum of $1,000. on her loss the insurance
panJ was duly made iiaoe Tor the loss. In NOyeni-
Der, 1885, Slate co, failed, and their insolvency
was well known IN the CITY,. On the 24th OF Deceni-
Der, 1859, the plaiotin notified the insurance
pany OF their claim upon the Insurance money ana
Oh the insolvency OF slate & Co.. and forbade pa
ment OF the loss TO them. The loss did not become
due unit February 23 1880 The plaintiff served on
the Insurance company summons IN this action on
the 18th OF January, 1862 against slate Il Co,
and the other owners and making the insurance
company defendants. The Insurance company
notice; and also deducted from the loss an amount
tney claimed as premiums on other assurances.
Against tins payment the plaintif demonstrated on
the 18th March, 1860, in letter to the tnsll, ance
company, declaring that he should hold them
accountable Inc claim on thIs fund Is the third
their account dropping all al!usion TO the items
prior to the last voyage rendered 1t to the plaintiff
and paid the balance which IL exhibited to the
planlr VINO, at the time, objected iciency.
Certain evidence was given as TO Slate Co. holding
certain interests in trust for Others and so as to
the defendant, W. Gardner, holding hls interests as
security, and II. Iyies as nominal owner But no
Judgment is reldered against Gardner nor a. Lyles.
Judgments against other part owners rendered
for their controuory shares to the debt OF the plain
! tin for supplies, provided the amounts are not
covered against Slate 4 Co. az primarily liable from
| having received the money; or from the insurance
! company, as having paid IN their own wrong. The
! Judgment was aolrmed on appeal by the General
| Term
| The sun Mutual Insurance Company defendants
and appellants, set forth that on the LIST day OF
| November, 1859, they insured Slate & Co. for
account Of whom IL might concern, $1,000 on the
freight OF the ship jamestown on voyage from
Mobile 10 Liverpool valued al $1,000, loss pay.
from New York for Mobile IN ballast, abo Ut
pers insured against about November wh ne
loading ior Liverpool, In Mobile Bay. The company
paid the loss to Slate Co., as provided BY the
| policy as foilows:-December %, 1859, s3,54I: Janu
sry Il 1880, IS 500; January 81 1880 $780, Fe6rn-
airy %, 1860, S4lo4 which. with the interest
insured. inc company has nevertheless, been
condemned by the Judgment now appealed
| from, to pay about half OF this amount
over again to the parties represented by Slate Co.
STATE Co. had applied for and procured tue policy
IN their own names, and the company had never
known any party In the business until the cath OF
December 1859, after they hal already made the first
payment above specified, when the PLAINTIFF In this
acton addressed TO them the following letter.
Dec
pEAH H. s notice s s. the , p9 Hs q the
company BY Slate Co.. the the owners
@ % ass Slate c sn OF as e
BID the payment to them ana shah take measures whou.
| fully. Z. IT, GILLIAN
on the 10Th OF January, 1880. the plaintlfr com.
menceu this action by service OF summons without
| complaint. Tne other owners ana tue company
were named as defendants In the summons. mo
/ company, having no reason to suspect any interest
or equity III the plaintiff beyond his oneeighth ndi-
Vldna interest a. represented by the register paid
| to Slate 4 Co. the amount still remaining due upon
| the policy, being the last two payments amounting
! to =, S5i 90. Slate & Co. thereupon made up and
rendered to the owners the true account OF the
| expenses and disbursements Of the last voyage
/ credlting them with the insurance money collected
and PAID TO the plaintln March IL, $780, his
| eighth share or the net baance-s992 61-by their
check TO his order winch he endorsed and collected.
| On the following day he addressed to tue company
another letter, stating that he would hold them
responsible for what they had thus paid contrary TO
| DIS claim OF interest, OF which they had had due
| notice.
u
| December "a, 1868, that he should take measures
without delay to enforce his claim he took steps
10 that end. II viii be noted that by the compl lint
| lie prepared for an injunction and receiver, but
| neither was obtained. The complaint contained the
rrst suggestion ever made 10 the company OF claim
to further equities asserted by the plaintl.-First
| To have an old balance OF the accounts OF prior
| voyages which had been LETT unpaid by Slate Co..
| amounting to 1851 80, charged as q lien the
| insurance moneys In favor OF the plaintiff as sur
vlvor OF the firm OF BIRD Gliliian and, second, to
have another old claim OF BIrd GILLIAN Il Co.. OF
|
member, for discussing the ship as consignees at
that port, charged In the same way, and generally
| 10 make the company pay over again whatever,
upon an accounting should be found to be due the
plaintiff from any and oil the other part ana
from the ships husbands. 1t Is found by the Court
| that the snip's husbands Slate Co., rendered due
accounts TO she owners OF ali the ships earnings
aud by the account Of July /, 1859, rendered by
them there was balance due to the plaintiff for his
oneeghth interest mp to That date Of sl137 80 All
accounts up to this date were rendered to all
owners, were objected to by none OF them and are
found by the Court to be "due accounts OF the
inss Of the ship and Of the plaintiffs proportion
were shipping merchants in Liverpool aud plaintiff
was member OF that firm. The jamestown was
consigned to them early in 1859. The vessel arrived
at Liverpool from Bombay in April, 1859, ant
was disonrsed By Bird, GILLIAN Co., who also col
hei baSnce Of & e sun a e a aue
rendered to slate Co. two accounts-one, '.shiI
jamestown and owner. IN account with Bird, GiLi
| Ian a Co, Liverpool, May T. I859n-in which the
credited the owners with this balance By transfer
ring the same TO the debit Of the Individual accoun
i
= | from The owners TO Bird, Gillian co.
on this state OF facts the court at special Tern
found that the appellant, the sun Mutual Iusurauc,
Company made 10 Its own wrong all the payment
to slate Co, subsequent TO the plaintiffs notice
December "a, 1902 and adjcdged to pay over agar
to the plaintiff, first, the entire amour
. cater deductng certain chargesl OF the fs5s 1s 4
a the Bird Gillian 4 Co.'s account, amounting I
s4622 40; second, 4-32 Of the balance remaining
9 their hands OF the insurance moneys at the time
/ service OF the notice. after paying thereout the sal
bill OF Bird Gillian Co., making 81, 1903 u; and
third out OF the 1872 Of such balance appertaInin
TO the share OF Slate Co. the balance which STAT
q Co. had left unpaid TO the plaintiff on the account
OF all the voyages In which account slate co. nj
4 | credited with 1902 81, paid by them out OF IN
o | insurance moneys-the entire recovery amountin
q | in all to sa,427 80. This Judgment having bee
affirmed at General Term the sun Mutual insurane
Company now appeals 70 TINS court. Az TO the tel
. | OF fs5g Is, the plaintiff IN his complaint claims IL
q '.due by the ship and her part owners Jointly
Bird Gillian Co., and 80 charseabs TO the paii
q | tin individually.n