Opinion of the Court, by CURTIS, Ch. J.

flicting testimony before them, in accordance with proper rules indicated by the court.

Before CURTIS, Ch. J., and SPEIR, J.

Decided January 2, 1877.

Appeal by the defendants from a judgment entered upon the verdict of a jury.

F. J. Fithian, for appellants.

Miles Beach, for respondent.

ance.

BY THE COURT.-CURTIS, Ch. J.-This action is to recover for a pro rata of loss upon a policy of insurThe defenses were, that plaintiff omitted to serve proofs of loss, and that he did not begin suit within twelve months next after the loss, as required by the conditions of the policy.

The fire occurred January 26, 1873. Due notice was given of the loss; the amount of which was fixed and determined by appraisers chosen by both parties, on February 1, 1873. A son of the plaintiff was arrested upon a charge of setting the premises on fire.

The plaintiff called two witnesses, who testified to a statement made by the defendant's secretary, about February after the fire, to the plaintiff, when he threatened to sue, to the effect that it was of no use to sue, as the defendants were willing to pay their pro rata share as soon as the boy was discharged. The boy was discharged about June 4, 1874, and this suit was commenced in July, 1874.

The secretary of the company admits knowledge of the boy's arrest, the notice and appraisal of loss, and the demand and threat to bring suit; but denies that he made the alleged statement in reply. There was other testimony on the part of the defendants, showing a conversation in June, 1874, on the subject of this

Opinion of the Court, by CURTIS, Ch. J.

loss, between the secretary and one of the plaintiff's witnesses, Mr. Harlem. The latter testified that he was also there at a second or third interview in June, after the boy's discharge, with one L. Morris, who asked the secretary why they did not pay, and he said he was not sure the boy was discharged, and refused to pay.

It was for the jury to pass upon this conflict of evidence, to find whether any witness testified falsely, or whether the secretary of the company might not have forgotten the first interview, happening shortly after the appraisement. The disposition of it lay within their province, and the case fails to disclose any such preponderance of evidence in the defendant's favor, as calls for granting a new trial. It was the right of the jury to seek to reconcile the testimony; and the mode in which it could be done was indicated in the judge's charge. Unless the plaintiff was induced by some act of the defendant, it is hardly probable he would have failed to present proofs of loss, and sue within the time specified in the policy.

The court also charged the jury, that if they found this promise to pay without suit on young Solomon's discharge was made, it was for them to consider whether that promise, together with the fact of the appraisement being voluntarily made by the defendant, had the effect on the plaintiff's mind of preventing his taking steps to present further and detailed proofs of loss, and whether it had the further effect of preventing the bringing of the action upon the policy; and that, if they found affirmatively, the plaintiff was entitled to recover the loss as adjusted. There was no error in this.

It is insisted that the defendants are not bound by any such statement as their secretary is claimed to have made; but if they hold him out to parties insured, to represent them in respect to losses, and speak for them at their office, in negotiations for the settle

Statement of the Case.

ments and appraisements of losses, it is inconsistent with good faith towards parties who have rested relying upon his statements or promises, to raise technical objections to his authority to bind them. The company cannot justly allow one of its officers to mislead persons under such circumstances, and after inducing them to omit presenting proofs of loss or commencing suit in time, take advantage of such omission by questioning their officer's power (Amey v. New York Union Ins. Co., 14 N. Y. 266; Ripley v. Etna Ins. Co., 30 Id. 164; Dickerson v. Wason, 47 Id. 439).

The evidence does not sustain the objection, that the judgment must be reversed because it affirmatively appeared that the plaintiff was not the owner of the claim when the suit was commenced.

The judgment appealed from should be affirmed with costs.

SPEIR, J., concurred.

J. B. WILLIAM WILSON, PLAINTIFF AND RESPONDENT, v. AUGUSTA S. KNAPP, EXECUTRIX, &c., AND SHEPARD KNAPP AND EDWARD S. KNAPP, EXECUTORS, &c., DEFENDANTS AND APPELLANTS.

COLLISION OF VESSELS.

OWNERSHIP OF VESSEL, AND TITLE OF SAME.

Relative rights of a mortgagor, the owner of the vessel as appears from her register, and his mortgagee, or the assignee of such a mortgagee in possession of the vessel.

The plaintiff, a resident of Port au Prince, Hayti, was the owner and in possession of the vessel in question prior to the execution of a mortgage upon the same in August,

Statement of the Case.

1870, to one Ballon, to secure the payment of three thousand pounds. Ballon, upon the same day the mortgage was made, assigned the same to Oliver Cutts & Co., of Port au Prince, Hayti, who took and held possession of the vessel under the mortgage and assignment, and at the time of the collision (in December, 1874), the vessel was in possession of parties by virtue of letters of attorney from Cutts & Co., and these parties were entitled to the profits of the vessel, but for the collision.

66

The vessel was registered in the name of the plaintiff, and the mortgage and assignment of the same recited the fact that the vessel was the property of the plaintiff, as per register," and the mortgage had not been foreclosed. Held, that under these circumstances, the plaintiff's title to the vessel and his rights therein were such, that he was entitled to sue for damages for an injury to the vessel, notwithstanding he was not in possession, and had not been for some years, and was not entitled to her earnings or profits at the time of the collision.

The plaintiff can tender the amount due on the mortgage

and redeem his vessel; or, if she has earned enough to satisfy the mortgage, he can compel an accounting, and thus redeem her.

The improbability of redemption, and the lapse of four years without any effort for redemption, are not facts which of themselves divest the plaintiff of his legal right to redeem the vessel.

The trespasser cannot avoid his liability for the damage he inflicted upon the vessel, by setting up the rights or equities of other parties in the same, who are cognizant of the facts and have notice of the plaintiff's action, and approve and promote the same.

The referee found the expense of certain work was four

hundred dollars, and that he found no evidence to enable him to specifically detail the several items of this expense, to which the defendants excepted. Held, that if the defendant wished the referee to find the items making up this amount, he should have in some way furnished the evidence.

It has been held that no exception lies to the refusal of a referee to find the particulars which go to make up his general conclusions of fact (Avery v. Foley, 4 Hun, 415).

Opinion of the Court, by CURTIS, Ch. J.

Before CURTIS, Ch. J., and SPEIR, J.

Decided January 2, 1877.

This is an appeal from a judgment in favor of the plaintiff for $5,633.88, entered upon the report of Edward L. Owen, Esq., referee to hear and determine the issues.

The action was brought by the plaintiff, claiming to be the owner of the barque "Trait d'Union," to recover damages for an injury to the barque, caused by a collision with the ferry-boat Martha, owned by the original defendant, Gideon L. Knapp.

On the night of December 25, 1874, while the barque was lying moored on the southerly side of a wharf at Greenpoint, East River, the Martha, while the pilot was absent from the wheel, came in collision with her, striking her on the starboard side, forward of the main rigging, and angling towards the stern, crushing in her side, raising her deck, and also starting planks and breaking fenders on the port side.

At the trial before the referee, there was no controversy as to the fact of the collision, or the liability for the damage; but the defendants claimed, that the plaintiff was not the real party in interest, and had no right to sué; and that the damage did not exceed $1200.

Edmond Wetmore, for appellant.

William W. Goodrich, for respondent.

BY THE COURT.-CURTIS, Ch. J.-The barque "Trait d'Union" was, previous to June, 1870, an armed vessel belonging to the Haytian government. About June, 1870, she was purchased from that government for her subsequent owners, by William H. Ballon, who has for several years past been her master.