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CASES

ADJUDGED IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW YORK,

IN JANUARY TERM, 1803.

STEINBACK against RHINELANDER AND OTHERS.

SAME against Church.

A, was at Trinidad in Cuba, where he received vessels and cargoes consigned

to him by B. and C. of New York, and in which A., B. and C. were jointly interested. In April, 1800, A. purchased a prize vessel, and sent her with a small cargo, on the 29th May, to the Havana. On the return of a vessel from Trinidad to New York, which had been sent out by B. and C. to A., B. was informed by the master, that A. had purchased a prize vessel called the Chance, and that she was to come to New York with a cargo ; and B., without receiving any information from A. himself, or any order for the purpose, on the 16th June, caused the vessel and cargo to be insured at and from Trinidad to New York, and paid the premium. The broker, at the time he effected the policy, told the insurer, that the plaintiff did not know whether the vessel and cargo had been purchased for A. or B. or C., and that he had no orders to have them insured ; but that A. had the funds of B. and C., and they had just heard the vessel was coming to New York. The policy was effected for account of A. or C. or B. and C., or any other

person, &c., in the usual form. The vessel not having come to New York, B. afterwårds brought an action

against the insurers, to recover back the premium, and, at the trial, A. who had been previously released by B., was admitted as a witness, and testified that the vessel and cargo were his sole property, and were purchased on his own account, and that neither B. nor C. nor any other person, had any interest in them; and that he sent her to the Havana, and though he wrote 10 B. and C. in May, he never informed them of the purchase, or ever

Steinback v. Rhinelander.

gave any orders to them, or to any other person, to have the vessel insured

in New York. It was held, that A, under the circumstances, was a competent witness; that

B. was not his agent; and that the supposed interest of B. being a mistake, no risk was run, and that the plaintiff, was, therefore, entitled to a return of premium.

The first action was for a return of premium on a

policy, dated 6th June, 1800, on the body of the [*270] schooner *Chance, at and from Trinidad, in the

island of Cuba, to New York, purporting to be made by the plaintiff, for account of himself, or Peter Malibran, or John Murray & Son and the plaintiff, or whoever else, &c. The vessel was valued in the policy at 7000 dollars, and the premium was 20 per cent.

It was proved at the trial, by the broker who effected the policy, that the plaintiff informed him, that Captain Brown, of the ship Albeinarle, who had just arrived froin Trinidad, had informed him that Malibran had purchased at Trinidad the schooner Chance, a prize vessel, and had sent to the Havanna for a crew, and that she was coming to New York ; but that he did not know whether she had been purchased for Malibran or for the plaintiff, or for Murray & Son and the plaintiffs, they having funds there in his hands; that the plaintiff informed him he had no orders for insurance from Malibran; and these facts the broker communicated to the underwriters.

It was further proved, by John Murray, that the plaintiff mentioned to hiin the information he had received from Captain Brown, and that he proposed to insure, and that the schooner was intended to be sent from Trinidad to NewYork. It was also proved, by a clerk of the plaintiff, that the plaintiff had not (as he had heard) any orders from Malibran for insurance, and that Malibran had wrote several letters to the plaintiff, in April and May, 1800, and none of them contained any advice to that effect.

The deposition of Malibran, which had been taken de bene esse, by consent, saving all just exceptions, was produced

Steinback v. Rhinelander.

and read in evidence, he having, previous to his e amination, been released by the plaintiff of all claims for the premium, and the release accepted, and his general character proved to be good. Malibran stated that in April, 1800, he purchased, at Trinidad, the schooner Chance; that about the time of the purchase, Captain *Brown, master of [*271] the ship Albemarle, was there under charter to the plaintiff and consigned by him to Malibran ; that Malibran advised with Captain Brown about employing the schooner, and suggested sending her with a cargo to New York, but never positively determined so to do; that Captain Brown sailed for New York before Malibran had made up his mind, as to the destination of the vessel, and without expressing any order or desire that Brown should get the vessel insured ; that soon after Brown sailed, Malibran determined to send the schooner with a small cargo to the Havanna, and wrote to his correspondent at the Havanna, on the 31st May, 1800, stating “that although by the endorsed bill of lading, the schooner Chance appeared to be bound for New York, (which was done for fear of cruisers,) his orders were to the captain to go to the Havanna, and wait for further instructions; that his correspondent at Havanna must get the vessel and cargo insured, for 6000 dollars ; thas the vessel had sailed on the 29th May, and that should the vessel arrive before him, at the Havanna, and any good offer appear, the correspondent was to sell both vessel and cargo.” Malibran further stated, that the letter was sent by express, by land, and did not arrive until the day, or day after the arrival of the vessel, so that the insurance from Trinidad to the Havanna was saved ; that the vessel and cargo were solely his property, and the vessel had no other cargo on board, than that mentioned in the invoice and bill of lading, consisting of sugars, hides, braziletto and fustic, amounting to 1,773 dollars; and both the invoice and bill of lading stated the voyage to be to New York, and that the cargo was consigned to the plaintitf, and belonged to Malibran ; that the invoice and bill of ladiny were on board, on the voyage, and the let

Steinback v. Rhinelander.

ter was signed by the captain, and was dated 27th May; that

he never determined to send the vessel to New(*272] York, nor was any part of the *cargo put on board

with that view; that the bills of lading, &c. were niade out for New-York, merely to prevent capture, to which the vessel would have been liable, in going from one Spanish port to another : that Malibran never wrote or ordered the plaintiff to effect the insurance on the vessel or cargo, and that although he wrote to the plaintiff by Captain Brown, he never mentioned the purchase of the vessel, or that he intended to send her or any vessel to the United States; that Brown was dead, and he, Malibran, was uninterested in this suit, and that he never wrote or ordered any person to insure the said vessel or cargo, from Trinidad to New-York.

An affidavit of the captain made at the Havanna, on the 4th August, 1800, stated that no property was shipped on board the schooner, at Trindad, except what was specified in the bill of lading, &c.

Malibran, on his cross-examination, further stated that he purchased the vessel, on the 20 April, 1800, and that she cost, with repairs, 2,110 dollars and that he had it in contemplation to send her to New York; that he wrote to his correspondent to obtain American papers, at the Havanna, for the vessel, and also sent there for the captain ; that Captain Brown, sailed from Trinidad the last of April, or first of May, and that he wrote by him to Murray & Son, and to the plaintiff, and also to the same persons, in May, by other opportunities ; that the name of the plaintiff was inserted in the invoice and bill of lading, because he was his friend and correspondent; that he, Malibran, was at Trini. dad, to receive such cargoes as should be sent by Murray & Son and the plaintiff, who were jointly interested in such cargoes, and he, Malibran, was also interested in them; but that Murray and Son and the plaintiff, had no interest in the schooner or her cargo. The jury found a verdict for the plaintiff for 426 dollars and 20 cents, being the whole amount of the premium.

Steinback v. Rhinelander.

*The second action was for the return of the pre- [*273) mium on the insurance of the, cargo, and the same evidence was given as in the first cause; it was further proyed, that Captain Brown was a person in the confidence of the plaintiff ; that in the plaintiff's books, Malibran was charged with the premium of insurance, and with subsequent advances to counsel, for advice respecting the vessel.

The plaintiff also offered in evidence a case made by him with the opinion of counsel, notice to produce which at the trial had been previously given to him by the defendants ; but the defendants' counsel declined reading the paper on their part, and it was then read by the counsel for the plaintiff.

A verdict was also found for the plaintiff, for the amount of the premium.

A motion was made to set aside the verdicts, and for a new trial, on two grounds :

1. Because Malibran was an incompetent witness, and his testimony ought to have been rejected.

2. Because, admitting the evidence, the facts in the case did not entitle the plaintiff to a return of the premium.

Pendleton, Hamilton and Harison, for the defendants. Colden and Hoffman, contra.

THOMPSON, J. The objections stated to Malibran's competency are on the ground of interest, and because his name appears in the policy, which purports to be made by the plaintiff for account of himself, or Peter Malibran, or John Murray & Son and the plaintiff. I think, under the circumstances stated in the case, Malibran was a competent witness. It has been settled in this court, that it must be an interest in the event only, that will totally exclude a witness. Whatever objection might have been raised on the score of interest, appears to me to have been removed by the release from the plaintiff to the witness, as far, at any rate, as respected *this suit. It is said also, that as the inter- [*274) est in the vessel turns out to be Malibran's, he must be considered as the principal, and the plaintiff as his agent,

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