Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

of George B. Slocum, complains of the said defendants, The Genesee Mutual Insurance Company, and says: That the said defendants are a corporation, created, under the name and style aforesaid, by an act passed by the Legislature of this state, May 3d, 1836, entitled "An act to incorporate The Genesee Mutual Insurance Company."

And this plaintiff further says, that on the 13th day of June, 1850, George B. Slocum, then being the owner and possessor of the insured property hereinafter mentioned, sold and conveyed the same, together with other property, to this plaintiff, by deed in due form of law, upon express trust therein declared for the benefit of his creditors; and thereupon this plaintiff assumed the duties of such trust, and from thence hitherto has been, and still is, assignee in trust thereunder.

And this plaintiff further says, that on the 9th day of October, 1850, at Lansingburgh, in the county of Rensselaer, aforesaid, the said defendants, on the application of this plaintiff, as such assignee, as aforesaid, made a certain policy of insurance in writing, whereby they, the said defendants, in consideration that this plaintiff, as such assignee, had become a member of said company, and bound and obliged himself, his executors and administrators, to pay all such sum or sums of money as might be assessed by the directors thereof, pursuant to the act incorporating said company, annexed to said policy, and had secured to said company the sum of $120, being the amount of deposit or premium for insuring the sum of $3,000 unto him, his heirs, executors, administrators and assigns, on the following property, to wit, $3,000 on movable machinery contained in mill-reference being had to the application of this plaintiff, bearing date with said policy, and filed with the secretary of the said company, for a more particular description, and as forming a part of said policy—

during the term of one year, commencing at noon on the 28th day of September, 1850, and ending at noon on the 28th day of September, 1851, did, in and by said policy, certify that this plaintiff, as such assignee, as aforesaid, had become, and in and by said policy was, insured in and by said company, upon the property described as aforesaid, in the sum of $3,000; and the said defendants, in and by said policy, did thereupon, according to the provisions of said act, agree to settle and pay unto this plaintiff, his heirs, executors, administrators or assigns, all loss or damage, not exceeding in the whole the sum last abovenamed, which should or might happen to the aforesaid property, by means of fire, during the time the said policy should remain in force, the said losses and damage to be estimated according to the true and actual value of the property at the time the same shall happen, and to be paid within three months after notice should be duly given by this plaintiff, according to the provisions of said act. [The complaint here set forth at length the various other provisions and conditions mentioned in the policy.]

And this plaintiff further says, that on the said 9th day of October, 1850, at Lansingburgh, aforesaid, the said policy was duly executed by the president and secretary of said company, and was delivered to this plaintiff, and thereupon and thereby the said defendants then and there promised this plaintiff that they, the said defendants, would become and be to this plaintiff, to his executors, administrators and assigns, insurers to him of said sum of $3,000 upon the property in said policy of insurance mentioned, and would perform and fulfil all things in said policy, on their part and behalf to be performed and fulfilled, and did become and then and there was insured, as aforesaid.

And this plaintiff further says, that at the time of the making of such policy of insurance, and from thence

until the loss and damage hereinafter mentioned, this plaintiff, as such assignee as aforesaid, had an interest in the said insured property, to a larger amount than the money insured, as aforesaid, thereon by the said defendants.

And this plaintiff further says, that on the evening of the 26th day of April, 1851, the said property, in said policy of insurance mentioned, then still possessed and held by plaintiff, as aforesaid, was destroyed by fire, whereby this plaintiff, as such assignee as aforesaid, sustained damage, in the destruction and loss of the said insured property, to the amount of $4,000 and upwards, estimated according to the true and actual value of the property at the time of such loss.

And this plaintiff further says, that he has duly performed all the conditions, and in all things observed and performed and fulfilled all and singular the matters and things, on his part, in and by said policy and application, and the conditions, proposals and provisions of the by-laws, or extracts therefrom, annexed to said policy, to be performed, observed and fulfilled; and that notice in writing of said loss and damage was forthwith, after the happening thereof, to wit, on the 29th day of April, 1851, given to the said defendants, and that within thirty days after said loss and damage this plaintiff delivered to the said defendants a particular account of such loss, signed by his hand and verified by his oath, in the form and manner required by the said policy and application, and the conditions, proposals and provisions of the by-laws aforesaid.

Yet the said defendants, although often requested, have not paid to this plaintiff the said sum of money so by

This is sufficient in pleading performance of conditions precedent by the Code, § 162. The part in italics is unnecessary.

them insured as aforesaid, or any part thereof, or in any wise repaid or reimbursed to him the said loss, or any part thereof, but have wholly refused and still do refuse so to do.

Wherefore this plaintiff demands judgment against the said defendants, for the sum of $3,000, and interest from the 29th day of July, 1851, with costs of this action. PIERSON, BEACH & SMITH,

Attorneys for Plaintiff.

(No. 22.)

By general guardian of infant, to recover back money paid by mistake on account of his ward.

[merged small][ocr errors][merged small][merged small]

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action : That said C. D. is an infant, and one of the next of kin of R. D., deceased, who died intestate on or about the day of at the town of in Dutchess

In this case the suit is not the infant's, by his guardian, as in Nos. 1 and 41, part II., pages 46, 190, ante, but is the suit of the guardian, brought by him as "trustee of an express trust," within the provisions of section 113. In such a case the decision in Hulbert, an infant, v. Young (13 How., 413), is applicable, and the complaint, as in cases of receivers, committees, &c., must show, by proper averments, the time, place and manner of the guardian's appointment. (See notes, ante, pp. 190, 283.)

county, where he and said infant then resided, leaving a large estate of personal property, which, after paying the debts of said intestate, has been duly distributed to the next of kin of said R. D., by order of the surrogate of said county.

That such proceedings were had before said surrogate, that, by an order of said surrogate, bearing date the, &c., the said A. B. was duly appointed the general guardian of said infant, on his executing the security required by said order according to law.

That such security has been duly executed and filed, and said A. B. has duly qualified to act as such guardian, and as such has received the distributive share of said infant in his father'sestate.

That on the day of, said plaintiff, out of the money of said infant in his hand, paid the defendant the sum of $on an alleged claim and account of said defendant against said infant for necessaries, and on the representation by said defendant that the same was still due and unpaid.

That in point of fact, the said account had been settled and paid at the time, by the agreement of said defendant with the administrators of said R. D., deceased, to apply the debt which he owed said estate on said claim, which was done by said administrators for and on behalf of this plaintiff, and the receipt in full of said defendant taken before said money was paid him by said plaintiff, but without plaintiff's knowledge.

Wherefore the plaintiff, guardian, &c., as aforesaid, demands judgment against the defendant for the sum of $, with interest from

day of J. L. F.,

besides costs.

Plaintiff's Attorney.

« ΠροηγούμενηΣυνέχεια »