« ΠροηγούμενηΣυνέχεια »
no property except what he may derive from this estate, and which must depend upon the contingent and uncertain event if any may remain after the aforesaid accounting. That said testator was never married, but lived and died a bachelor. That the defendant, named in said will as Robert Reade, is not the lawful son and heir-at-law of the said testator, but was brought up and educated under the name of Crawford, and was recognized and introduced by said testator as his nephew, and never openly and generally acknowledged as his son, and that he has not assumed the name of Reade until within about six years past. That the assets and effects of said estate, as the said plaintiff is informed and believes, which may come into the hands of said Robert Reade under said will, including said trust fund, will exceed $100,000; and that the said plaintiff has reason to and does apprehend that if such an amount of money, convertible assets, securities and property should come into the hands of the said defendant, without any restraint upon his conveying the same, or of removing beyond the jurisdiction of this court, that said plaintiff would be remediless in the premises.
The said plaintiff therefore prays that discovery may be made of all the papers, books, accounts, correspondence, letters, deeds, mortgages and securities of the said Robert L. Reade, in the possession and under the control of said Robert Reade, as legatee, devisee, executor or otherwise, and that the same may, under the direction of this court, be delivered over to a receiver, who the said plaintiff prays may be appointed by this court, with the usual power to hold, manage and control the estate and assets of said Robert L. Reade, pending the account to be taken in the premises, he giving such security as the court may direct; and also that an account may be rendered and taken of the trust of said Robert L. Reade in respect to the property and estate of said plaintiff so managed by said trustee, as hereinbefore set forth, and of the rents, profits, income, value and interest thereof, and all lots, parcels and tracts of land, of which he died seized, belonging originally to said trust, or taken as security for the purchase money thereof, or repurchased by said Robert L. Reade in part payment of the same, may be decreed to belong to the said plaintiff; and that all securities, bonds, mortgages, stocks and other personal assets, arising out of or connected with said trust, as the proceeds thereof, may in like manner be decreed to belong to the said plaintiff, and that said Robert Reade, or such other person as may qualify on said will, may be decreed to assign and transfer the same. And also that a full account of the management of said trust and of all matters relating thereto being taken, and the amount ascertained to be justly due the plaintiff, over and above all taxes, charges and disbursements paid by said Robert L. Reade in respect to the same, payment and satisfaction of such balance may be decreed out of the general estate and property of said testator. And in the mean time, and until a receiver be appointed to hold said property, that an injunction may issue out of this court prohibiting and restraining the said Robert Reade from selling, conveying, mortgaging, or in any way incumbering or disposing of any real estate standing and being in the name of said Robert L. Reade at the time of his decease, and also from selling, disposing, assigning or transferring, or in any way meddling with, the bonds, mortgages, stocks securities, and other personal assets, belonging to the estate of said Robert L. Reade, deceased.
And that the said plaintiff may have such other and such further relief in the premises as may be just and equitable, and as this court may direct.
THOMPSON & WEEKS,
Against an insurance company which, by its agent, had
agreed to effect an insurance, but before doing so loss had occurred; praying relief in the alternative that defendant pay the loss or be compelled to execute a policy pursuant to its agreement.
SUPREME COURT - RENSSELAER COUNTY.
Theodore N. Davison
agt. The Utica Live Stock Insurance Company.
The plaintiff abovenamed, complaining of the said defendants, says, that the said defendants are, and on the 20th day of May, 1854, were, a corporation, created under and by virtue of the laws of this state, for the purpose of effecting and with power to effect insurances (among other things) upon live stock. That the said defendants located their place of business at Utica, in the county of Oneida, and at the times aforesaid were engaged in the aforesaid insurance business. That Asa B. Cleveland, at the said times, was the duly authorized agent of the said defendants, at the city of Troy, in the said county of Rensselaer, to receive, on the behalf of the said defendants, applications for insurance, and to issue certificates of the character hereinafter mentioned, and to fix and receive premiums upon such applications for insurance, and was so duly authorized as the general agent of the said defendants, at the city of Troy aforesaid, to effect insurance for the said defendants, to receive proofs of and adjust losses, and to do. and perform, at said locality, all such matters and things as were requisite in the conduct of the said business of the said defendants. That on the said 20th day of May, 1854, this plaintiff made and delivered an application in writing to the said defendants, through their said agent at the said city of Troy, for insurance to the amount of $300, for the term of one year from that date, upon the merino buck, Powhatan, then owned by this plaintiff, and at the same time paid to the agent of defendants the sum of $27 as premium upon and for such application; that the said agent of defendants then and there received and accepted the said application and premium, and at the same time, under his hand, issued to the plaintiff a certificate and receipt in the words and figures following: 1
That the said A. B. Cleveland, as the agent of the said defendants, had full power to receive the said application and premium, and to execute and deliver the said certificate and receipt on the behalf of the said defendants, to wit, at the time and place aforesaid ; that no policy of insurance was ever issued upon said application ; that no notice that said risk was declined by the defendants was ever given to this plaintiff or his agent until after the loss hereinafter mentioned; that no portion of the money
· The following is a copy of the certificate :
The Utica Live Stock Insurance Company. Received, of Theodore N. Davison, twenty-seven dollars, premium on his application to the Utica Live Stock Insurance Co., dated May 20th, 1854, for insurance on $300 for the term of one year from the 20th day of May, 1854. The application will be forwarded forthwith to the company's office for acceptance. Insurance is effected under this certificate until a policy is issued, if issued ten days, or notice that the risk is declined shall have been given the applicant or agent, and the money received on account of his application returned less premium for time the risk is covered.
A. B. CLEVELAND,
to issue this certificate. Daled this 20th day of May, 1854.
aforesaid, received on account of said application, was ever returned to this plaintiff.
And this plaintiff further says, that on or about the 16th day of December, 1854, the said buck, Powhatan, died from disease and became a total loss to this plaintiff, to his damage of $300 and upwards. That at the time of said application, and from thence to the time of said loss, the said buck, Powhatan, was the property of this plaintiff.
And this plaintiff further says, that he gave notice of said loss to the said defendants, through their said agent, and also presented to said agent proofs of said loss, to wit, at Troy aforesaid, and the said agent then and there made no objection to such notice and proofs.
And this plaintiff further says, that he has caused demand, on his behalf, to be made of the said defendants for payment of said sum of $300, and the said defendants have refused to pay the same upon the sole ground that the said defendants did not accept said risk, or undertake any insurance upon said property, or incur any liability therefor.
Wherefore this plaintiff demands, as relief in the premises, that the said defendants be adjudged to pay to this plaintiff the said sum of $300, with interest from the said 16th day of December, 1854, or to execute to this plaintiff a policy of insurance in accordance with said application and certificate and receipt, to bear even date therewith.
Although a complaint cannot ask inconsistent relief, yet alternative relief can be demanded under the Code, as well as heretofore, in a bill in equity. It has always been common for the draftsman to frame his bill with a double aspect when he doubted the particular relief to which he considered the plaintiff entitled; so that if the court should be against him under one view of the case, it may nevertheless afford him assistance in another. (Young v. Edwards and others, 11 How. Pr. R., 201; see Pleudings, 296, 367, 368.)