The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-05-14
THE COURTS.
How Tweed's Escape Initiated Policy
on His Life.
a LONG SLUM5ERlNG LAWSUIT
New Phase in the Resuscitated
Garbage War.

Judge Freedman, Of tho Superior Court, yesterday
Rendered . decision OF considerable Importance In
the suit brought by Josephine s. Douglas and Jennie
8 Tweed tho daughters OF the iato William NJ. Tweed,
against the Knickcrbocker Lie Insurance Company.
Inc suit 10 ono in equity 10 compel the defendant TO
issue TO the plaintiffs paid up policy for $4,000, as
Tor eighttenths Of tho policy for $4,000 issued by
the defendant for the plaintiffs benefit the LIST OF
October, 1858. BY the terms oil the policy and in
sderation OF the premium OF $3.50 80 and Of tho
nual premium OF q like sum 10 be paid on or before
the LIST OF October In every year during the contnu
ence OF the policy, the defendant assured the life OF
William NJ Tweed for the benefit OF hts daughters,
and, In OF tho death OF either both the portion
OF the deceased TO pass to Mr.. Tweeds wife. In case
Of tho death OF Mr. Tweed before tho Sd Of April,
1873, tho defendant stipulated to pay the amount
issued to the benelciarios as stated, but In case
nc should be alive that day the amount was TO be
paid 10 MIN, whoreupon the policy should be VOID
This policy was issued ana accepted upon the express
condition that II the party insured should travel upon
the soas except In voyages between coastwsc ports Of
the United States, should pass beyond the civilized
ssttoments tho United States except into the
tied limits OF the British provinces OF the Canadas
Nova Scotia Now Brunswick, the policy should
be void. II upon alleged violation o. this clause
Nj. Tweed. alter his memorable escape from The
toby OF the Sheriff. was found Ia the port OF vlgo,
In Spatn distance OF about thirty five hundred miles
from New York. whore ne had gone without defend
ants consent, and that the Goth OF September 1876
BIO was at that port placed the United States
of-war Franklin and subsequently brought back 10
Now York as prisoner. The tired before
Judge Freedman at Special Term OF tho Superior
Court, some time ago and upon tho trial numerous
Witnesses were Examined, Including some OF the oi-
acers VI tho Franklin. Judge Freedman, in opin-
lon rendered yesterday, says that upon tho facts
stated there can be no doubt that important
diton had been violated. and that In consequence
contract between the parties came 10 an END unless
Continued by some other provision or by defendants
waivor Of tho violation He adds that there
argued, however, that because the policy states
that written permits, signed ny the president
o. secretary o. me company Will DO granted
pany 70 make voyages any foreign country. equity
VIII relieve against the violation. Judge Freedman
says The answer 10 this proposition 10 that the grant
Ing OF such permit upon terms 10 be- prescribed by
the company involves new bargain to be entered
court cannot make for them. As matter OF law the
company has right TO determine each application Tor
permi! upon its own iscts and win special refer.
snCe 10 the additional risk TO be incurred. Nor Is
there any evidence showing upon what forms Tweed
would or could have obtained permit II he had ap
pied ior one or that the company has uniform RUE
upon the subject Judge Freedman cites numerous
decisions IN analogous cases, then goes dis
suss the question Of payment VI premiums In tho
present case the premiums wero 70 be paid Ut
twelve O'Clock noon the days mentioned In the
policy else the same would be void without notice
70 either party and u was further provided that any
violation oil the conditions printed the back OF the
policy would have ike effect, and all tho premiums
paid thereon forfeited. But upon the back Of the
policy there Is stipulation, separately signed by the
President and Secretary Of the company, providing
ANNUAL premiums the policy should consc-
auence OF tho non.payment OF premiums, then upon
policy for tho full vauo acquired under the old one
subject 10 any notes lhat have been received
account Of premiums That e to say, II payments Tor
three years have been made II VIII ISSUE policy tor
thrse.tentns Of tho sum originally insured, and SO
on In the same proportion Tor any number
OF pay ments without surjectng tho assured to any
subscq uent charge except the interest annually all
premium notos remaining unpaid on the policy. II
was argued this account the contract was IN
part with the person whose Lie insured ana In
part with tho benencaries named, and that as between
Them aud tho company IL was diysibe so that alter
the pay nent OF the third annual premium the con-.
traet could not DO Terminated by the company Tor .
violation ny the person whose lie Insured Of any
ofthe conditions except on notice TO the bsncfcares.
No notice being gwen II further argued that
the policy continued force up to The LIST OF October
1870, and that on that day the benenciarieg
position elect omit the pay mont VI the premium
failing due upon that day and 70 demand policy
iurthcr charge, there being no outstanding notes
Tor premiums given by them or tho insured.
Judge Freedman says that he has gwen all these
ditIons a critical examination, ana cons idercd them
with reference 10 their loyal effect some bear the
character Of conditions prcc, dent or active cond-
lions, the performance OF which Is essential TO give
right oil action. while Others being OF restrictive
character, declare the instance or
which The policy was TO become void the breach OF
!he latter discharges the liability when Gated
~ tho performance OF Tho active condition Upon
he loot o all Is the saving clause favor OF the
nnuance OF the policy after the receipt OF least
.LTeo annual premiums. Hut tnis clause available
10 the person whose life 10 insured well 10 the
Lsauoing ny itself II has not sufficient meaning nor is
u capable OF separate execution or enforcement Ii
was manuesty Designed to be part OF The original
contract, sinco II refers 10 the policy IN express
language, and by It's express language II bind
the company only IN the policy in couse-
qucnce Ci the non-pay ment oil premiums In con-
Ciusion he holds that nothing can be found 10 tho
condition which warrants the conclusion that there
separate the bcnenciarics or that
they acquired any vested rights ailer the payment
the thiri annual PREMIUM which could not BIO
Invested by subsequent breach OF a condition not
covered ny the saving clause, or that they
titled to notice OF breach. The policy and all tho
conditions being continued together constitute tho
contract, and only ono contract, upon which the
rights an liabilities oil ali parties depend. Taken as
whole, therefore, the pain intent OF parties
tnat W aIser three annual aynen,s had been made,
the policy should lapse the company should not DO
IN position TO enforce the absolute forfeiture Of all
Tho premiums received. provided all the other cou-
diti0ns had been complied with, but in case
Of those other con0itions had been violated
The policy should become null aud void without
notice 70 any VI The parties Interested The liability
OF tpe company could become absolute only on the
happening Of certain event. No Court has a right
10 i'm pose additional conditions Such Conditions arc
essential parts OF the contract They Quay the ell.
tire contract. ana upon a violation OF any oil pro.
bibi'ory clauses u ny Its terms becomes ipso iacto
void. IL may DO great hardship 10 the benenciaries
that the policy which was Labelled as endow ment
policy wholly failed TO secure them any endnw me ut
Whatever but the Court only carry into e CT the
Contract as thcy made II, anu as thus maue they
stand IN no better position than Tweed would have
stood II be hal brought the action. The piainuns,
svon " they be regarded exclusively tho Iignt oil
benenciarics, chose tweed tho subject OF RI un.
Ger cer,aiI conditions which they agreed to accept
He violated them and his breach 10 their breach. by
breach the policy by It's express terms became
null nd Void He therefore gives Judgment Tor the
q oisnaant, dismissing the cou paint
REVIvING AN OLD SUIT.
A sort Of RIP Van winxle sioep, which Is Of rare