Voss v. Smith

110 A.D. 104, 97 N.Y.S. 3, 1905 N.Y. App. Div. LEXIS 3876

Opinion

Patterson, J.:

These cases came on for argument on appeal at the present term of the court.- Objection was taken that the facts could not be inquired into for the want of a certificate that the cases contained. all the evidence adduced at the trial. Thereupon the decision of the appeal was held over in order that an application might be made ■to.the court below to have a certificate granted and the record thus' .reformed. We have been notified by the attorneys for the _áppellant that such an application has been made and denied by the justice who tried the causes. Hence, we cannot consider that which seems to be the crucial matter involved, namely, the merits of the controversy.

We have, therefore, to pass upon the question of the conclusions of law being justified by the findings of fact and in addition thereto the value of exceptions taken at the trial. The actions were instituted to determine the ownership of adjusted losses under certain policies of insurance. The E. C. Bell Manufacturing Company was a corporation carrying on business in the city of New York, and the, Hartford Insurance Company, a foreign corporation doing business in the city of New York, issued its policies of insurance to the E. C. Bell Manufacturing Company and insured that company from losses by fire to certain specific amounts. A reference to the policy involved in one action is sufficient to cover the three cases. The facts we are required to accept, in addition to those above referred to, are that after the issuance of the policies of insurance and while they were in full force and effect the E. C. Bell Manufacturing Company sustained losses by fire on or about December 25, 1901. The losses were adjusted and the share agreed to be paid by the insurance company was an amount which was afterwards paid by that company into court to abide the event of this action. , Then follow the controlling findings, namely, that on or about the' 27 th day "of December, 1901, and after the loss by fire sustained by the E. C. Bell Manufacturing Company, it duly assigned to the plaintiff all its right, title and interest to the policy and the claim arising out of the loss and that the plaintiff ever since has been and now is the lawful owner and holder of that claim ; that thereafter the defendant Smith was appointed.receiver of the E. C. Bell Manufacturing Company and qualified as such and has ever since his appointment been acting as receiver; that there is now in the possession of the defendant as receiver of the E. C. Bell Manufacturing Company a certain amount of money which he holds subject to the judgment in this action; that at the time of the execution of the assignment to the plaintiff of the loss sustained by the E. C. Bell Manufacturing Company under the policy issued to it that company was solvent and well aide to pay all its debts and obligations and that the assignment was accepted by the plaintiff as a bona fide purchaser without notice or knowledge on liis part of the financial / condition of the E: C. Bell Manufacturing Company and was accepted by him for a valuable'consideration, and. the plaintiff at that "time was a creditor of the corporation in good faith and there was no intention to give him a preference.

Those being-the facts which cannot be disputed on this record it. necessarily' follows that the plaintiff was entitled' to judgment. That judgment is'in accordance with the allegation of the complaint ' and the findings of the court. We are’unable to perceive that any .of the defendant’s exceptions, entered On the record were well taken. • / , ' ■

As- the cases have come before us the judgment must be affirmed, "with costs. .

O.’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

In each case judgment affirmed, with costs.