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 1 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, Agent to receive applications, and authorized to issue this certificate. Dated 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.1 1 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 Pleadings, 296, 367, 368.) And that this plaintiff may have such other and further relief as to this court may seem meet, with costs. BEACH & SMITH, Attorneys for Plaintiff. (No. 79.) To compel heirs-at-law, and their grantees, with notice of plaintiff's equity, to convey to plaintiff certain real estate, sold by the ancestor of heirs to plaintiff, and paid for and possession delivered to him. Praying also an account of rents and profits, and for damages done to real estate, since plaintiff was dispossessed by defendants. SUPREME COURT-SARATOGA COUNTY. Walter J. Bruce Eliza Clarke, Thomas L. Clarke, George B. Clarke, Eliza Thayer, Henry H. Hathorne, and Seymour Ainsworth. The plaintiff, complaining of the defendants, says, that he resides in the county of Oneida, and the defendants reside in the county of Saratoga, in the State of NewYork; that in the year 1832 one John Clarke, of Saratoga Springs, in the county last aforesaid, was the owner and possessor of a certain house and lot situated on Federalstreet, in the village of Saratoga Springs, and described [setting forth description]; that the said John Clarke so owned the said premises, subject to an annual ground rent of $15, payable on the first day of April in each and every year thereafter to one Joel Clement, his heirs or assigns; that on or about the year first aforesaid, the said John Clarke, for a valuable consideration, sold the said house and lot to the said plaintiff, and then and there delivered to the said plaintiff the possession thereof, and said plaintiff thereupon entered into the possession of the said premises, and by himself, his tenants and agents, remained in possession of the same down to the latter part of the month of April, or the month of May, 1853, and in each and every year duly paid the said ground rent, and at his own proper costs and charges has paid and discharged all such taxes, duties and assessments as were charged, assessed or imposed upon the said premises; and did all other things required by the terms and conditions of the said lease to be done by the said John Clarke. And the plaintiff says, that at the time of the sale and delivery of the said lot, the said plaintiff paid to the said Clarke a part of the sum agreed upon between them as the purchase money for the said premises, and at different times thereafter, and previous to the 12th day of April, 1845, he paid to the said John Clarke divers sums of money thereon; and on the day last mentioned he settled with the said John Clarke, and paid him in full the principal and interest then remaining due thereon; that on the said 12th day of April, 1845, and on divers days previous thereto, and at the time of the sale and delivery of the said lot, the said John Clarke, in consideration of the premises, agreed, to and with the said plaintiff, to assign to him, the plaintiff, the lease by which he, the said Clarke, held the said lot; but the plaintiff says, that at the time of the said settlement, on the 12th day of April, 1845, such lease was lost or mislaid, and could not be found; and in consequence thereof, the said John Clarke did not then execute or deliver to the plaintiff, the said assignment thereof as he then and there agreed to do; nor did he ever during his life find the said lease, or execute or deliver to the plaintiff an assignment thereof. The plaintiff further says, that the said John Clarke died at Saratoga Springs, aforesaid, on the 6th day of May, 1846, and left a widow, the abovenamed defendant, Eliza Clarke, and three children his only heirs-at-law, the abovenamed defendants, Thomas L. Clarke, George B. Clarke and Eliza Thayer, the last of whom was then unmarried, and known by the name of Eliza Clarke, but has since then intermarried with one Mr. Thayer, who is now deceased. The plaintiff further says, that after the decease of the said John Clarke, but at what time, he, the plaintiff, has no knowledge or information sufficient to form a belief, the said Eliza Clarke and the said children and heirs-at-law of the said John Clarke, found or recovered the possession of the said lease, and in or about the month of May, 1853, for a valuable consideration, they, the said Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, by a certain indenture of deed, of bargain and sale (brought here into court), sold, assigned and conveyed unto the said defendants, Henry H. Hathorne and Seymour Ainsworth, and their heirs and assigns forever, all their right, title and interest, of, in and to the said indenture of lease, and all their right, title and interest in and to the said premises, and all rights, equities and privileges conferred by the said lease; and covenanted for themselves, their heirs and personal representatives, that the said John Clarke, in his lifetime, did not do, and that since his death they had not done, any act or thing whereby the title to said lease, and the said John Clarke's interest in the said premises, had been or might be in any way impeached, impaired or incumbered, and that they had good right, full power and lawful authority to convey the said lease, and the leasehold interest in said premises thereby granted, in manner aforesaid. |