Robertson, Ch. J.
The plaintiffs in this case, if they were assignees of the cause of action before any settlement made by the defendants with the consignees, unless such defendants had no notice of such assignment, were entitled to recoveror so, too, if they had a legal right in equity to such settlement, and the defendants knew the facts out of which such equitable rights arose, a settlement made in fraud of such right would be void. It has been frequently held in the courts of this state, as well as those of Massachusetts, that where an owner of goods insured, and damaged by perils insured against, abandons all spes reeuperandi to the underwriter, the latter, on paying the loss, is entitled to be subrogated to all the rights of the insured—to recover against third parties who caused the damage, by neglect or otherwise. (Atlantic Insurance Co. agt. Storrow, 1 Edw. 621; S. C. 5 Paige, 585; New York Insurance Co. agt. Roulet, 24 Wend. 513; Rogers agt. Hosachs, Ex’rs, 18 Wend. 319; Etna Fire Insurance Co. agt. Tyler, 16 Id. 385; Hart agt. Western Railroad Co. 3 Metc. 99); and the entire destruction of the subject of insurance (Mayor, &c., of New York agt. Pentz, 24 Wend. 668; Opinion of Verplanck, sen.), or the payment of the loss (New York Insurance Co. agt. Roulet, 24 Wend. 516, per Edwards, sen.), has been consid[108]*108ered equivalent with an abandonment in giving the insurer such right of subrogation. In the case of a common carrier, it is true, the owner of goods transported by him may, by agreement, give him the benefit of an insurance on them, affected by such owner, so as at least to deprive the underwriter of any remedy against such carrier, although such insurance was made without knowledge by the underwriter of such agreement with such carrier (Mercantile Mutual Ins. Co. agt. Calebs, 20 N. Y. R. 173). In fact, such carrier is an insurer as well as the underwriter, and their rights seem to depend entirely on the action of the owner, who may, by previous agreement, give either the preference in having a claim against the other, in case of a loss.
The referee in the present case appears to have assumed that an abandonment of some kind was necessary to entitle the plaintiffs to recover. He states in his report that the plaintiffs, “by reason of” an abandonment which he'had previously found as a fact, and them payment to the consignees of the amount of their loss, “ as well ” (meaning, undoubtedly, “ as much ”) as by virtue of the assignment to them, acquired the rights of the consignees. That he meant that such rights were acquired by either means, separately and indifferently, I think evident from his contrasting the phrases “by reason of” and “ by virtue of,” as well as his use of the word “ subrogated,” to express the mode of acquiring such rights, which is not appropriate to an assignment, and his succeeding statement “that the circumstances of the ease constituted notice to the defendants of the intervening rights of the plaintiffs ” [not as assignees, but] “ as insurers of the property injured; and that, therefore, “ their settlement * * * was without affect on the previously acquired rights of the plaintiffs.” I cannot doubt, therefore, that the referee meant to rest his conclusions as much, if hot more, on the right of the plaintiffs as insurers to whom the consignees had, by other means, transferred all their interest in the goods, than on them right as assignees, particularly as he does not speak of any express or implied [109]*109notice of the assignment as such before the settlement, which would be necessary to defeat it.
There is no evidence in this case of a direct and formal relinquishment by the consignees of all then interest in the damaged grain to the plaintiffs; and the question of its abandonment as a fact is, therefore, not without difficulty in this case. The preliminary steps of possession taken by the plaintiffs of such damaged part, by direction of the defendants, after a series of notices of the loss, first by the latter to the consignees, then by them to the plaintiffs, and finally, some negotiations between the parties to this action, did not constitute an abandonment; nor would the mere sale of part of the cargo, and the receipt of its proceeds by the plaintiffs, unless by the consent of the consignees, operate as such. In fact, at the time when the plaintiffs thus took possession of the cargo, it was still in possession of the defendants as carriers; and they only delivered it to the plaintiffs to take charge of it for the parties interested. There is no direct evidence that the consignees, at that time, had any agency in the transfer of the property. Subsequently, however, their agent, in the very receipt given by him to the agent of the defendants, on the 9th of May, 1861, and which they claim to be a settlement, admitted that the damaged grain had been received by the consignees at Fort Plain, thus recognizing the delivery to the plaintiffs as a receipt by themselves. The damaged grain having been sold by the agent of the plaintiffs, and its proceeds received by them, they settled with the consignees as for a total loss of the damaged grain, without regard to such sum so received. That evidence was certainly strong enough to have defeated any action by the consignees against the plaintiffs for the conversion of such damaged grain. I think it was also evidence from which the referee was at liberty to infer an abandonment of the damaged grain.’ (See New York Insurance Co. agt. Roulet, 24 Wend. 513.) And if necessary for the determination of the ease, we, ought not to disturb his finding Upon that point.
I am, however, inclined to think that even the payment [110]*110of the loss alone, particularly as a total one of the grain damaged, entitled the plaintiffs to be subrogated to the rights of the consignees, so far as such loss was concerned. Otherwise, the consignees would be entitled to double compensation, and the policy of the plaintiffs become a mere wager one, since the consignees were entitled to be fully indemnified by the defendants, who were in fact equally insurers. In such case, neither would be entitled to recover against the other what they might be compelled to pay. In this very case, the consignees received-fifty dollars from the defendants, for damage to the cargo, which was not credited to the plaintiffs in their settlement with them. On the payment of a partial loss, the inchoate right or equity of the plaintiff must become complete, because there can be no abandonment. In the case of The Mayor, &c., of New York agt. Pentz (24 Wend. 668), it was held that the plaintiffs were entitled to recover the full value of property destroyed by municipal authorities to prevent the spread of a conflagration, without regard to an insurance made 'thereon, because the insurers were entitled to be subrogated, or a reduction of their liability, to the extent of the amount recovered from the city, without regard to an abandonment, which would have been useless. It is laid down in a case in the same volume of reports (p. 576, The New York Insurance Co. agt. Roulet) that the mere payment of the loss by an underwriter entitles him in equity to whom may he recovered from other parties on account of the loss, and necessarily to be subrogated so as to recover
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Robertson, Ch. J.
The plaintiffs in this case, if they were assignees of the cause of action before any settlement made by the defendants with the consignees, unless such defendants had no notice of such assignment, were entitled to recoveror so, too, if they had a legal right in equity to such settlement, and the defendants knew the facts out of which such equitable rights arose, a settlement made in fraud of such right would be void. It has been frequently held in the courts of this state, as well as those of Massachusetts, that where an owner of goods insured, and damaged by perils insured against, abandons all spes reeuperandi to the underwriter, the latter, on paying the loss, is entitled to be subrogated to all the rights of the insured—to recover against third parties who caused the damage, by neglect or otherwise. (Atlantic Insurance Co. agt. Storrow, 1 Edw. 621; S. C. 5 Paige, 585; New York Insurance Co. agt. Roulet, 24 Wend. 513; Rogers agt. Hosachs, Ex’rs, 18 Wend. 319; Etna Fire Insurance Co. agt. Tyler, 16 Id. 385; Hart agt. Western Railroad Co. 3 Metc. 99); and the entire destruction of the subject of insurance (Mayor, &c., of New York agt. Pentz, 24 Wend. 668; Opinion of Verplanck, sen.), or the payment of the loss (New York Insurance Co. agt. Roulet, 24 Wend. 516, per Edwards, sen.), has been consid[108]*108ered equivalent with an abandonment in giving the insurer such right of subrogation. In the case of a common carrier, it is true, the owner of goods transported by him may, by agreement, give him the benefit of an insurance on them, affected by such owner, so as at least to deprive the underwriter of any remedy against such carrier, although such insurance was made without knowledge by the underwriter of such agreement with such carrier (Mercantile Mutual Ins. Co. agt. Calebs, 20 N. Y. R. 173). In fact, such carrier is an insurer as well as the underwriter, and their rights seem to depend entirely on the action of the owner, who may, by previous agreement, give either the preference in having a claim against the other, in case of a loss.
The referee in the present case appears to have assumed that an abandonment of some kind was necessary to entitle the plaintiffs to recover. He states in his report that the plaintiffs, “by reason of” an abandonment which he'had previously found as a fact, and them payment to the consignees of the amount of their loss, “ as well ” (meaning, undoubtedly, “ as much ”) as by virtue of the assignment to them, acquired the rights of the consignees. That he meant that such rights were acquired by either means, separately and indifferently, I think evident from his contrasting the phrases “by reason of” and “ by virtue of,” as well as his use of the word “ subrogated,” to express the mode of acquiring such rights, which is not appropriate to an assignment, and his succeeding statement “that the circumstances of the ease constituted notice to the defendants of the intervening rights of the plaintiffs ” [not as assignees, but] “ as insurers of the property injured; and that, therefore, “ their settlement * * * was without affect on the previously acquired rights of the plaintiffs.” I cannot doubt, therefore, that the referee meant to rest his conclusions as much, if hot more, on the right of the plaintiffs as insurers to whom the consignees had, by other means, transferred all their interest in the goods, than on them right as assignees, particularly as he does not speak of any express or implied [109]*109notice of the assignment as such before the settlement, which would be necessary to defeat it.
There is no evidence in this case of a direct and formal relinquishment by the consignees of all then interest in the damaged grain to the plaintiffs; and the question of its abandonment as a fact is, therefore, not without difficulty in this case. The preliminary steps of possession taken by the plaintiffs of such damaged part, by direction of the defendants, after a series of notices of the loss, first by the latter to the consignees, then by them to the plaintiffs, and finally, some negotiations between the parties to this action, did not constitute an abandonment; nor would the mere sale of part of the cargo, and the receipt of its proceeds by the plaintiffs, unless by the consent of the consignees, operate as such. In fact, at the time when the plaintiffs thus took possession of the cargo, it was still in possession of the defendants as carriers; and they only delivered it to the plaintiffs to take charge of it for the parties interested. There is no direct evidence that the consignees, at that time, had any agency in the transfer of the property. Subsequently, however, their agent, in the very receipt given by him to the agent of the defendants, on the 9th of May, 1861, and which they claim to be a settlement, admitted that the damaged grain had been received by the consignees at Fort Plain, thus recognizing the delivery to the plaintiffs as a receipt by themselves. The damaged grain having been sold by the agent of the plaintiffs, and its proceeds received by them, they settled with the consignees as for a total loss of the damaged grain, without regard to such sum so received. That evidence was certainly strong enough to have defeated any action by the consignees against the plaintiffs for the conversion of such damaged grain. I think it was also evidence from which the referee was at liberty to infer an abandonment of the damaged grain.’ (See New York Insurance Co. agt. Roulet, 24 Wend. 513.) And if necessary for the determination of the ease, we, ought not to disturb his finding Upon that point.
I am, however, inclined to think that even the payment [110]*110of the loss alone, particularly as a total one of the grain damaged, entitled the plaintiffs to be subrogated to the rights of the consignees, so far as such loss was concerned. Otherwise, the consignees would be entitled to double compensation, and the policy of the plaintiffs become a mere wager one, since the consignees were entitled to be fully indemnified by the defendants, who were in fact equally insurers. In such case, neither would be entitled to recover against the other what they might be compelled to pay. In this very case, the consignees received-fifty dollars from the defendants, for damage to the cargo, which was not credited to the plaintiffs in their settlement with them. On the payment of a partial loss, the inchoate right or equity of the plaintiff must become complete, because there can be no abandonment. In the case of The Mayor, &c., of New York agt. Pentz (24 Wend. 668), it was held that the plaintiffs were entitled to recover the full value of property destroyed by municipal authorities to prevent the spread of a conflagration, without regard to an insurance made 'thereon, because the insurers were entitled to be subrogated, or a reduction of their liability, to the extent of the amount recovered from the city, without regard to an abandonment, which would have been useless. It is laid down in a case in the same volume of reports (p. 576, The New York Insurance Co. agt. Roulet) that the mere payment of the loss by an underwriter entitles him in equity to whom may he recovered from other parties on account of the loss, and necessarily to be subrogated so as to recover such money, and nothing is said of abandonment. In The Atlantic Insurance Co. agt. Storrow (vide sup.), a cancelment by the owner of goods of a bill of lading, and a discharge of the ship owner from liability for the loss of such goods'by thieves, was held to entitle the insurer in equity, after a judgment against him for the loss, to be relieved from it, and no question was raised of any necessity of abandonment. Of this equity of the plaintiffs ■ the defendants were bound to take notice, as they knew of the policy, and invited the plaintiffs to take possession of [111]*111the goods for the benefit of all parties, and any settlement made by them was subject to such rights.
Q If the plaintiffs could entitle themselves by any act to take the place of the consignees in prosecuting the defendants for the damages to the grain, caused by the negligence of the latter, a settlement between the defendants and consignees, for fifty dollars, of all claims for such loss, admitted to. have been over $2,000, with knowledge of the facts out of which the right of the plaintiffs arose, and of the extent of the loss, would have been a fraud on them. But, in fact, on the evidence, the referee was not bound to find that any such settlement took place. He has ignored it in his report, and in order to sustain that, we want and must presume he found against it, if the evidence justified such finding.
The receipt, on the back of which, according to the testimony of the plaintiffs’ agent, the figures or details of the supposed settlement were made and given, was merely for the cargo delivered in New York; and such agent was unable to recollect what was said about the part of the cargo delivered at Fort Plain. All the items in such statement, except the one for fifty dollars, refer expressly only to the grain delivered in New York. That item is stated to be “ for general average,” which clearly is not applicable to a claim of damages for a loss by negligence. Two witnesses (Bequa and Higgins) state that it was the custom to deduct such sum on the settlement of all freight bills for grain in bulk. Such indorsement states the charge to be for freight of the amount delivered in New York, and no charge is made for freight of the damaged cargo. The written document, therefore, which is constituted of the receipt and statement indorsed together, purports to relate only to delivery, freight and allowances, in reference to the grain brought to New York, and only refers to the residue to state it was received at Fort Plain, without making any charge for transportation, which, by the bill of lading, was to have been fifteen cents per bushel. If all the damage to the cargo, for which the defendants were responsible, was only fifty dollars, or that was for general average, or some other custom[112]*112ary allowance, they were clearly entitled to freight pro rata ; yet nothing seems to have been said of it.
The express character of such written document, was not varied by the other testimony of the agent of the plaintiff (Stout). All he could say of the claims made by the agent of the consignees (Eequa) was, “ that he claimed the difference between the cargo delivered, and what the bill of lading called for. He made no other claim for damage than the one referred tothat “ they claimed for shortage ; * * * that the delivery was short fifty-six bushels, and that they should be allowed for that;’’ but he further states, that “ they also claimed to he allowed for damages to the cargo, in addition to the sum of fifty dollars; which was also agreed to,-and allowed.” Ho such claim appears on the statement, nor does it appear what was the amount. He could not tell how they got at the sum of fifty dollars, and could not recollect, after the lapse of four years, what was said about the portion of the cargo not delivered, although it was talked about. And he first testified that he did not know that part of the cargo had been stored, nor could he say that he had been informed that it had been either stored or sold; yet, subsequently, when speaking of the conversation as to the damaged cargo, he states, that he “ knew a part had been taken out and sold, and that there was a loss.” He says,
“ the item in the bill, ‘ less for general average,’ is what he called the damage.” Mr. Eequa, the consignee’s agent, thought (as he testified) that the claim for the damaged portion of the cargo was not embraced in the settlement. He did not recollept any discussion, or anything said or done about the damaged portion of the cargo. With so plain an exclusion of all consideration of the damage to the part of the cargo, not brought to Hew York, by the receipt and statement indorsed, it would be dangerous to trust to the imperfect recollections and vague statements of one of the parties to such settlement, after a (apse of four years, where a claim of two thousand dollars on the one side is alleged to have been relinquished for fifty, ,and all claim for over two hundred and sixty dollars for freight, waived on the other, with[113]*113out the slightest recollection of any discussion of the claim by either party. The referee was, therefore, warranted, in disregarding such transaction a! a settlement of the present claim.
I have not been able to discover how the blank form of a policy of insurance read on the trial, had anything to do with this case. Ho connection is shown by other evidence between it and any of the parties,' or any document or .transaction. It is said to have been read in evidence. Some proof must, therefore, be presumed to have been given in relation to it, or admission m'ade as to its authenticity, as the only objection was to its competency as between the parties to this action, and not to any want of proof. It might have been made relevant by other proof, connecting it with other transactions, such as evidence that it was the form of policy adopted by the plaintiffs with the consignees of the cargo in question, and was, therefore, not necessarily to be excluded when offered. Ho motion was made to strike it ottt; the referee was not called upon to disregard it, and it does not seem to have affected his decision ; no advantage, therefore, can now be taken of its admission.
There is apparently no evidence in the case to sustain the referee’s finding of a settlement between the consignees and defendants, three days after the assignment to the plaintiffs, although Mr. Eequa does testify that he paid Mr. Stout a certain sum ($257.38), as part of the sum due according to the previous settlement, and “ took a receipt, the one already produced in evidence.” Ho such receipt appears in the case, but the sum is the same as that specified in the imaginary receipt set out in the referee’s report. Such a receipt, if it existed, would have a strong bearing upon the question of any prior adjustment of the claim for damages, if given with knowledge of the assignment; but it is not before us, and may be considered as stricken out of the report; with whose findings of facts and legal principles it does not interfere, particularly as no exception was taken to the finding of fact based upon such receipt.
The judgment should, therefore, be affirmed, with costs.