said premiums must be paid on or before the days above mentioned for the payment thereof;" also, that upon the surrender of the policy while the same is in force or within thirty days thereafter a paid-up policy will be issued in lieu thereof. The premiums were paid in quarterly instalments to and including May, 1879, but the instalment for August was omitted inadvertently, and in November following the two quarterly instalments then due were tendered and refused. In an action to compel defendant to issue a paid-up policy, Held, That the construction of the policy is, that though the premium is defined to be the payments demanded for a year's insurance, such premium may become due by instalments, and where the date for the payment of any instalment passes, that portion of the premium can never be said to fall due at any future period, and the premium can never then be paid as it falls due, and the omission to pay the instalment of August 14, worked a forfeiture of the policy. Action to compel defendant to issue to plaintiffs a paid-up policy of insurance for $700. Plaintiff was the holder of a tenyear policy of insurance issued by defendant. The premium was payable in quarterly instalments on the 14th days of May, August, November and February, and was so paid for seven and one-quarter years. The second quarterly instalment of the omitted inadvertently, and on Noeight year, August 14, 1879, was vember 14, 1879, plaintiff tendered to defendant the instalments for August and November, which were refused. Plaintiff subsequently demanded a paid-up policy under one of the provisions of the policy provided for its issue upon the surrender of the original policy while in force, or within thirty days thereafter, which was refused. Defendant demurred, upon the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action. Demurrer having been overruled with leave to answer, and default having been made, judg ment was entered requiring defendant to issue a paid-up policy, from which, and the order overruling the demurrer, this appeal is known as the premium hereof, and in all cases shall be due in advance with the beginning of each year. Where said premium is divided into quarterly or semi-annual parts the unpaid portion of the year of death shall be deducted in the settlement hereof." And it further provided that "said premiums must be paid on or before the days mentioned for the payment thereof." ment for the defendant upon the demurrer ordered with costs. Opinion by Van Brunt, J.; J.F. Daly, J., concurs. MORTGAGE. INSURANCE. RECORD. N. Y. COURT OF APPEALS. Dunlop, respt., v. Avery,impl'd, applt. Décided Oct. 10, 1882. Plaintiff held a mortgage which contained a covenant to insure, and a policy was taken out for his benefit. Subsequently a mortgage on the same premises containing a similar covenant was given to defendant, who had no knowledge or notice of the covenant in plaintiff's mortgage, and a policy was also taken out for his benefit. The premises were destroyed by fire, but plaintiff's policy had previously expired and had not been renewed. In an action of foreclosure, Held, That the title to the insurance money was in defendant, and the equities being equal between the parties the legal title must prevail. The covenant as to insurance is entirely per sonal and does not run with the land. The recording act has no application to the covenant as to insurance. Reversing S. C., 11 W. Dig., 405. T. G. Ritch, for applt. Lucius McAdam, for respts. Held, That the policy of insurance was forfeited by plaintiffs' default. The claim of the plaintiffs is founded upon the provision of the policy that the payments demanded for a year's insurance shall be known as the premium thereof; and he contended that as the policy is kept in force by the payment of the premiums as they fall due, and as no premium (that is, payments for a year's insurance) fell due until the last quarterly payment matured, there was no forfeiture in this case. In this argument the provision as to how the This action was brought to forepayments shall be made is lost close a mortgage for $2,000, exesight of. The plain construction cuted to plaintiff, which contained of the policy in this regard is that a covenant to keep the premises though the premium is defined to insured for the benefit of the mortbe the payments demanded for a gagee and that the loss, if any, year's insurance such premium should be paid to him. A policy may become due in instalments, for $2,000 was taken out, the loss and when the date for the payment being made payable to plaintiff. of any instalment passes, the por- Subsequently another policy was tion of the premium represented by issued for $3,000, which was not it can never be said to fall due at a made payable to plaintiff, and after future period, and the premium this a mortgage was executed to can never then be paid as it falls defendant with a similar covenant due. 35 Sup. Ct., 536. as to insurance and a new policy Judgment reversed, and judg- was issued for the same amount VOL. 15.-No. 11. and the loss made payable to defendant as his interest might appear. Upon the expiration of the $3,000 policy a policy for $2,000 was issued, loss, if any, payable to defendant, which was delivered to and kept by him. The $2,000 policy, in which the loss was made payable to plaintiff, expired and was never renewed. The premises were destroyed by fire and plaintiff claims that the money received for the insurance should be applied on his mortgage, although the loss in the policy in force at the time of the fire was made payable to the defendant. The referee found that defendant had no knowledge or notice of the covenant in plaintiff's mortgage to keep the premises insured for his benefit. D. Pratt, for applt. H. Burdick, for respt. Held, That the title to the insurance money under the provision in the policy was in defendant, and the equities being equal between the parties the legal title must prevail. 41 Barb., 285; 3 Paige, 421. The rule is that when the mortgagor covenants to keep the buildings insured for the benefit of the mortgagee, any insurance effected in the mortgagee's own name, or for the benefit of the mortgagee, will be presumed to be in fulfilment of his covenant, and it may be inferred that this was done, in the absence of proof to the contrary, but this is not the legal presumption when the policy The recording act has no application to the covenant as to insurance, and notice of the covenant must depend upon proof without reference to its provisions. 28 N. Y., 191. Truscott v. King, 2 Seld., 147; Ackerman v. Hunsicker, 85 N. Y., 43, distinguished. The covenant as to insurance is entirely personal in its character and does not affect the land or run with it, and is collateral and incidental to the remaining covenants in the mortgage. Platt on Covenant, 183; 3 L. Lib., 181; Platt on Leases, 226-228; 17 Wend., 150. In re Sands, 3 Biss., 175, disapproved. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. Opinion by Miller, J. All con cur. HUSBAND AND WIFE. POOR. N. Y. COURT OF APPEALS. Goodale, applt, v. Lawrence, exr., respt. Decided April 11, 1882. A wife becoming insane left home and was taken to her brother's house. She was adjudged a lunatic and a committee appointed. After her separate estate was exhausted she was turned over to the overseer of the poor and became a county charge until her husband's death. Held, That she was a "poor person" within the meaning of 1 R. S., 616, § 14, and that an action could be maintained by the superintendent of the poor against the executors of the husband to recover the amount of expenditure necessarily incurred on account of the wife. itself provides for the payment of An insane wife is incapable of abandoning the loss to another incumbrancer. 44 N. Y., 42; 8 Paige, 437. her husband. This action was brought by plaintiff, as superintendent of the poor of Orange County, against the executors of one M. to recover for the support of the testator's wife from October, 1872, to January, 1875. It appeared that the wife of M. became a lunatic about eighteen months after his marriage and left M., with whom she had been living at his house in the city of New York, and was taken to the house of her halfbrother in Orange County, where she remained. Upon application abandoning her husband. When a wife is suffering under such affliction it is the duty of the husband to protect and support her. Judgment of General Term, affirming judgment for defendant at Circuit, and the order setting aside a verdict for plaintiff, reversed, and judgment on verdict ordered for plaintiff. Opinion by Tracy, J. All con cur. N. Y. COURT OF APPEALS. ing Ass'n, applt., v. Conkling Decided Oct. 10, 1882. of her half-brother she was ad- OFFICIAL BOND. SURETIES. judged a lunatic and a committee of her person and estate was appointed. Her separate estate was applied by said committee to her support until it was exhausted, when an order was made that she be delivered over to the overseer of the poor in the County of Orange and she became a county charge and remained so until the death of the testator. She was known at the asylum as Mrs. V. K., and not as Mrs. M. It did not appear that plaintiff knew that M. was her husband. H. A. Wadsworth, for applt. E. F. Brown, for respt. Held, That the wife of M. was a "poor person" within the meaning of § 14 of 1 R. S., 616, which provides for the maintenance of such persons by the county or town, 15 Gray, 15; 6 id., 416; and that this action was maintainable against the executors of M. to recover the amount of the expenditure necessarily incurred on account of his wife. 7 N. H., 576; 4 Greenl., 258. The sureties on a bond given to secure fidelity in a book-keeper, which contains, among others, a general covenant that he will faithfully discharge "the duties of any other office, trust or employment relating to the business of the said association which may be assigned to him, or which he shall undertake to perform,” are liable for his fidelity only while he is a bookkeeper, and not for a default made by him, as receiving teller, under a subsequent appointment. Affirming S. C., 12 W. Dig., 275. This action was brought against the sureties on a bond executed by defendants to the plaintiff on its appointment of the defendant. J. C. as a book-keeper in its bank in September, 1863, at a salary of $400 a year. The bond was given to secure the faithful performance by J. C. "of the duties committed to and the trust reposed in him as such book-keeper, and shall also An insane wife is incapable of faithfully fulfill and discharge the duties of any other office, | 431; 1 T. R., 287; 6 East, 507; trust or employment, relating to the business of the said association which may be assigned to him, or which he shall undertake to perform." It was also provided that J. C. should, without neglect or delay, inform plaintiff's president and cashier of any embezzlement or fraud upon it, or of any false entry, error, mistake or difference of accounts in the books which shall come to his knowledge, and that he should also faithfully keep all the secrets of the association. The salary of J.C. as book-keeper was increased, and he continued to hold that position until 1870, when he was appointed receiving teller of the bank at an increased salary. He continued to be and act as such teller until October 10, 1879, when he resigned. After his resignation it was discovered that while acting as teller he had embezzled $2,700 of the funds of the bank. The sureties alone defended. Anthon's N. P., 2d ed., 300. If, while J. C. was bookkeeper, he had been temporarily employed to discharge the duties of some other officer or employe of the bank, defendants' obligation extended to the performance of such duties. A surety is never to be implicated beyond his specific engagement, and his liability is always strictissimi juris, and must not be extended by construction. The extent of his obligation must be determined from the extent of the language used, read in the light of the circumstances surrounding the transaction. 2 Caine's Cas., 1; 62 Barb., 351; 11 N. Y., 593; 13 id., 232; 21 id., 88; 38 Eng. L. & Eq., 57. Judgment of General Terni, reversing judgment for plaintiff, affirmed, and judgment absolute against plaintiff on stipulation. Opinion by Earl, J. All con cur. STREETS. RAILROADS. Eugene H. Pomeroy, for applt. John H. Bergen, for respts. Held, That the sureties undertook for the fidelity of their principal only while he was bookkeeper. That was the office brought to their intention, and which they had in mind when they executed the bond, and the recital therein, undertaking to express the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital, which is its key. 6 Ad. & El., N. S., 514; 4 Taunt., 593; 2 B. & A., Affirming S. C., 12 W. Dig., 392. N. Y. COURT OF APPEALS. The Prest., &c., of the D. & H. C. Co., applt., v. The Village of Whitehall et al., respts. Decided Oct. 10, 1882. The word "track," as used in § 1, Ch. 62, Laws of 1853, signifies the entire road bed, and not merely the iron or railway. The fact that there are within the limits and between the lines of a proposed street or highway switches or other contrivances for passing engines or cars from one line to another will not prevent the laying out of a street or road under Chap. 62, Laws of 1853. |