HEYMAN v. BARRETTS, PALMER & HEAL DYEING ESTABLISHMENT. (Supreme Court, Appellate Term, First Department. December 30, 1915.) 1. BAILMENT 31-PROOF-DYEING OF GOODS. In an action for damages from negligence of defendant in redyeing taffeta silk, evidence merely that plaintiff delivered the goods to defendant to be dyed, and that they were returned with holes and breaks, showing a tenderness in the goods, did not show actionable negligence, where it did not appear that the condition might not have resulted from the quality of the goods, though they were subjected to a careful and skillful process of proper dyeing. [Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. 31.] 2. BAILMENT 32-NEGLIGENT DYEING OF GOODS-DAMAGES-MEASURE. Where goods delivered to defendant to be dyed are damaged through his negligence, but all the goods returned to plaintiff are not unsalable, the measure of damages is the difference in the value of the goods properly dyed and their value as the work was done, and not the value of the goods considered as a total loss. [Ed. Note. For other cases, see Bailment, Cent. Dig. §§ 69, 133; Dec. Dig. 32.] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Sigmund Heyman against the Barretts, Palmer & Heal Dyeing Establishment. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued December term, 1915, before GUY, PAGE, and PHILBIN, JJ. Wakelee, Thornall & Wright, of New York City (Clarence E. Thornall, of New York City, of counsel), for appellant. Merrill, Von Dorn & Rubinger, of New York City (Maurice Rubinger, of New York City, of counsel), for respondent. PAGE, J. The action was to recover damages for negligence in redyeing 15 pieces of taffeta silk; the complaint alleging that by reason of the negligence of the defendant, its servants and agents, in the process of dyeing, said goods, wares, and merchandise became cracked and unmerchantable, due to the method employed by the defendant in the process of dyeing, and to the poor material and dyes used by the defendant, its servants, and agents in its attempt to dye said merchandise, and that by reason thereof the merchandise has been damaged totally. [1] No evidence was offered to prove negligence in the process or in the use of materials and dyes. The plaintiff merely proved that he delivered the goods to the defendant to be dyed, and that they were returned, with holes and breaks, showing a tenderness in the goods. Negligence cannot be predicated merely upon the condition of the goods when returned. The condition might have resulted from the fact that, owing to the quality and texture of the goods, they deteriorated when subjected to a careful and skillful process of dyeing with For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes good materials and dyes. This requires a reversal of the judgment and the granting of a new trial. [2] As there will be another trial, and plaintiff may be able to prove the negligence of the defendant, we call attention to the fact that the wrong measure of damages was applied. Inasmuch as the goods were returned to the plaintiff and all were not rendered unsalable, the measure of the damages was not the value of the goods as a total loss, but the difference in the value of the goods properly dyed and in their value as the work was done. Judgment reversed, and a new trial granted, with $30 costs to the appellant to abide the event. All concur.. SACHS V. MARYLAND CASUALTY CO. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) 1. INSURANCE 513-LIABILITY INSURANCE-EXPENSE OF DEFENDING SUIT. Where a policy indemnifying an employer against liability for injuries to his employés read that it indemnified assured "against loss from the liability imposed by law upon the assured," containing a stipulation that the insurer might defend, though such insurer was not required to defend a suit against the assured, it was liable to pay him the sums that the litigation legally imposed. [Ed. Note. For other cases, see Insurance, Dec. Dig. 513.] 2. INSURANCE 513-LIABILITY INSURANCE-ASSUMPTION OF DEFENSE BY INSURER-EFFECT. Where a policy of insurance indemnifying assured against loss from the liability imposed by law for injuries to his employés subjected a claim for an accident or an action brought thereon to the exclusive control, defense, and management of the insurer, which undertook the defense of such a suit and then abandoned it on the expressed ground that the assured's agent had knowledge of the accident three or four days after it happened, but did not report it to the insurer, such insurer, although the assured successfully defended the suit, could not, in the latter's suit against it to recover the expenses of the litigation, assert that the claim was not covered by the policy, since the insurer, irrespective of a strict estoppel in pais, cannot assume to operate under a provision in its favor and then repudiate it. [Ed. Note. For other cases, see Insurance, Dec. Dig. 513.] Appeal from Appellate Term, Second Department. Action by Nathan Sachs against the Maryland Casualty Company. Judgment for plaintiff, and from an order of the Appellate Term reversing it, he appeals. Order reversed, and judgment affirmed. Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and RICH, JJ. Paul Grout, of New York City (Charles B. La Voe, of New York City, on the brief), for appellant. James J. Mahoney, of New York City (F. Wright Moxley, of New York City, on the brief), for respondent. THOMAS, J. [1, 2] The plaintiff would recover from the defendant, insuring against loss, the expense of successfully completing the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes defense of an action brought against him by a servant for personal injuries. The defendant, as insurer, had initiated and entered upon the defense, but, after issue joined, abandoned the case and asserted that it was not liable for the accident under the policy. The defendant's argument is that, as the event showed, the employer was not legally liable to the servant; therefore it was not liable, inasmuch as the policy is to indemnify the assured "against loss from the liability imposed by law upon the assured." The policy is intended to indemnify; it also contains a stipulation to defend. Under authoritative decisions the insurer is not required to defend, but is liable to pay to the assured the sums that the litigation with the injured person shall, legally impose. Although there was forcible judicial opinion to the contrary, the above rule cannot be disturbed in this court. Cornell v. Travelers' Ins. Co., 175 N. Y. 239, 67 N. E. 578; Lawrence v. General Accident Assurance Corp., Limited, 124 App Div. 545, 108 N. Y. Supp. 939, affirmed 192 N. Y. 568, 85 N. E. ÎÎ12. But there is an extension of the rule to the effect that if the insurer undertake the defense he cannot assert that the claim for damages is not one covered by the policy. That is just, for although the language of the policy introduces it as an agreement to indemnify, the later clauses subject a claim for an accident and an action brought thereon to the exclusive control, defense, and management of the insurer. The process immediately after service must be delivered to it; the assured agrees to defend it "in the name and on behalf of the assured," unless it elect to settle it, or to pay the assured the indemnity up to the amount limited. Correspondingly the agreement eliminates the assured from participation in litigation or negotiation. He may not voluntarily assume any liability, nor without the consent of the company "incur any expense or settle any claim, except at his own cost, nor interfere in any negotiation for settlement or in legal proceeding," except to provide immediate surgical relief; when requested, he must aid by procuring information, evidence, attendance of witnesses, and in effecting settlements and prosecuting appeals. The assured is required to give place to the insurer in every particular. But it is said that such stipulations apply only to an "accident covered by this policy." The policy is so written, and furnishes the insurer an opportunity to decide whether he will undertake the defense, or, disclaiming liability, leave that question to be determined by the judg ment. It can appropriate the case and oust the insured only when the policy covers it. Hence, when it takes possession, it is a decision on its part that the case does fall under the policy. But its present attitude is that it can so decide, undertake the defense, then undo its decision, and abandon the defense. The decisions cited above construe the policy as favorably to the insurer as is consistent with the authority reserved to it to assume the mastership of the controversy. But it should not be permitted to dominate when it will, and at will cast aside the duty to defend that goes with the jurisdiction it has assumed. The assured and his rights are subject to its election; he should not be exposed to its fitful caprice. It is not a question of technical waiver or estoppel, but a matter of agreement. The com'pany conditionally agrees to undertake the defense, and in that case. the assured is excluded from interference. With what good faith could it assert that in defending it does not do so in compliance with the policy. But it may be said the assured continued the defense and succeeded. The judgment shows that there was no liability imposed by law. That is true. But that result was obtained presumably because the assured, to save the insurer as well as himself from damages in whole or in part, took up the defense where the company had left it. Had the insurer continued the defense, the result probably would have been the same; but that would not have established that by right it could assume the defense and abandon it unfinished. It was the right, if not the duty, of the assured to take up the defense interrupted by the insurer's defection, and, if possible, save himself and the indemnitor. That duty the insurer had assumed and put aside. The decisions, as stated, do not permit an insurer, under such policy as that in question, to disavow liability during the progress of a defense assumed by it. Glens Falls P. C. Co. v. Travelers' Ins. Co., 162 N. Y. 399, 56 N. E. 897; Rosenbloom v. Maryland Casualty Co., 153 App. Div. 23, 137 N. Y. Supp. 1064; Brassil v. Maryland Casualty Co., 210 N. Y. 235. 104 N. E. 622, L. R. A. 1915A, 629, affirming 147 App. Div. 815, 133 N. Y. Supp. 187; Mason-Henry Press v. Ætna L. Ins. Co., 211 N. Y. 489, 105 N. E. 826. In some of the authorities cited, the facts show that the abandonment of the defense left the insured in a more disadvantageous position than in the present instance. But in my judgment the assured need not prove an estoppel in pais. The insurer cannot assume to operate under a provision in its favor and then cast the burden on the assured upon the plea that the latter cannot prove that he is the worse for it. The insurer chose its position; there were alternatives; it freely selected one; it should not be permitted to toss that aside, and take another. It acted under its stipulation. There is another view of the matter. The defendant refused to go forward with the litigation upon the expressed ground that the assured's agent, Burston, had knowledge of the accident three or four days after it happened, but did not report it to the defendant until three days before the return day of the summons. The agent testified that he had no knowledge of it up to the time that he received the summons and complaint from the janitor, with whom it was left pursuant to an order for substituted service. There is no evidence that the assured had knowledge of the accident, as he was absent from October 1, 1908, to January 31, 1909, and Burston had charge of the property. The order for substituted service was made on December 28, 1908, and the summons was returnable on January 7, 1909. When Burston saw the defendant's representative, the latter questioned him for the purpose of drawing the answer; it was drawn and sent to him, by whom it was verified. So the letter by Ford, defendant's manager, remitting the papers, appears to be quite incorrect, and the ground given for their return untenable. Moreover, Burston stated that the defendant's agent received the papers without reservation. The order of the Appellate Term should be reversed, and the judgment of the Municipal Court affirmed, with costs. All concur. DAVIS v. QUINN. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) 1. WILLS 68-CONTRACT TO DEVISE-RIGHTS OF PARTIES. Where the whole lot of a decedent, against whom plaintiff claimed under his contract to devise, descended to defendant, plaintiff, who put on record a deed of the front house on the premises, which was a cloud on defendant's title, thereby put on defendant the burden of vindicating her title by descent by showing that the deed was not made and delivered to plaintiff before decedent's death, and took from defendant a right to which she was entitled. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. 68.] 2. WILLS 66 CONTRACT TO DEVISE-TENDER OF PERFORMANCE. Where decedent agreed that, if plaintiff would take care of him as long as he and his wife, plaintiff's mother, lived and pay him $500, he would make a deed of the place to her, to be delivered at his death, the execution of a deed to the front house of the premises bought with the proceeds of the original place was a tender of his obligation, purporting to measure the extent of it. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 173, 174; Dec. Dig. 66.] 3. WILLS 66-CONTRACT TO DEVISE-PERFORMANCE RATIFICATION. The plaintiff's acceptance of such deed, and her record of it in depreciation of the title of the decedent's daughter by descent, and her delivery of a deed of the rear lot to defendant, as intended by decedent, was a ratification of decedent's attempted performance of his agreement. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 173, 174; Dec. Dig. 66.] 4. WILLS 68-CONTRACT TO DEVISE-SUFFICIENCY OF EVIDENCE. In a suit to declare decedent's deed of part of his property to his daughter void, as in violation of his contract to make a deed of the whole of it to plaintiff at his death, in consideration of his maintenance by plaintiff, evidence held not to show that decedent's deed to plaintiff of part of the premises was not what he agreed to do. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 206-220; Dec. Dig. 68.] Appeal from Special Term, Suffolk County. Action by Alice E. Davis against Mercy Amanda Quinn, with counterclaim by defendant. Judgment for plaintiff, and dismissing the counterclaim, and defendant appeals. Judgment, except in so far as it dismissed the counterclaim, reversed, and judgment entered for defendant upon findings to be settled. Argued before JENKS, P. J., and THOMAS, CARR, MILLS, and RICH, JJ. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |