Union National Bank of Troy v. Sixth National Bank of New York.

and recover it back from Gregan. He was not insolvent for more than a year and a half after this mistaken payment to him. His subsequent insolvency at his death does not affect the case. By the stipulation to sue parties to the note, it was agreed that the rights of the parties should afterward stand the same as if no suit brought. Thus their rights must be determined as of the time when defendant was notified of the mistake. At that time Gregan's account was large enough to enable defendant to right itself.

It is also said that Gregan had parted with security he kad taken on the note after he heard it was paid, and before hearing of the mistake. That is claimed, but neither proved nor found as a fact. The defendant is liable to pay back the money unless it proves that it has no remedy over. That it has failed to do. There are many cases of recovery where the money has been paid over. Canal Bank v. Bank of Albany (1 Hill, 287). That, it is true, was the case of a forged indorsement of the payee's name to a draft upon the plaintiff. The defendant merely acted as agent in collecting, but the defendant, in fact, had no title to it, and could transfer none. It collected the money of the drawee and paid it over to its principal without knowledge or notice of the forgery. It was still held liable. In this case the defendant did not act as agent of any one. It discounted the note for Gregan, and, therefore, owned the note at the time it was sent to plaintiff for collection. I do not see that any action would lie by plaintiff against Gregan on the facts as proved; not upon the note, as that was void for usury; nor for money paid, as it never paid any to Gregan.

The judgment is affirmed.

NOTE.-In The Kingston Bank v. Eltinge (40 N. Y., 391), published after the above had been prepared for publication, the rule allowing a recovery of money, paid under mistake in facts, is held to apply when the party receiving the money cannot be restored to his former position after repayment, and although the plaintiff may be chargeable with negligence. [Rep.]

The case arose out of the mutual negligence and misapprehension of the parties, who had equal facilities for ascertaining the actual facts; but the court say, per HUNT, Ch. J., "care and diligence are not controlling elements in the case. It is a question of fact merely. The inquiry is, are the parties mutually in error, and did they act upon such mutual mistake, not whether they ought so to have acted. If in consequence of such mutual mistake one party has received the property of the other, he must refund, and this without refer ence to vigilance or negligence."

Manley v. The Insurance Company of North America.

JOHN MANLEY, Respondent, v. THE PRESIDENT AND DIREOTORS OF THE INSURANCE COMPANY OF NORTH AMERICA, Appellants.

(GENERAL TERM, EIGHTH DISTRICT, MAY, 1869.)

A referee is now required, by Rule 32 of this court, to state the facts found by him in his report.

The General Term will assume that a referee has so stated all the facts found by him affirmatively, and that he negatives those facts litigated on the trial, upon which his report is silent;

And on appeal from a judgment entered on the report of a referee, will review the questions of fact upon the evidence, and affirm or reverse the referee's decisions thereon, whether express, or implied from the silence of his report.

The remedy, in this court, to secure the performance of his duty by a referee, is by motion. If important, for a proper review, that his findings of fact shall be more ample, the proper practice is a motion to recommit the report with directions to find how the fact was upon the evidence. The suggestion in Grant v. Morse (22 N. Y., 323), that this court would perhaps grant a new trial for a referee's refusal, in settling the case, to find upon all the issues, disapproved.

The practice, in bringing questions for review, before the General Term, on appeals in this court stated. Per MARVIN, J.

The methods of providing for a review in this court, and in the Court of Appeals, when the appeal is from a judgment entered upon a referee's report, stated and distinguished. Id.

M. having possession of lands, under a contract for their purchase from C., effected an insurance on the buildings thereupon, and, after they were in part destroyed by fire, directed the insurer to pay the loss to C., and at the same time assigned to C. the policy; the insurer refused to approve of the assignment, because it included the insurance upon the buildings destroyed; the assignment then being amended, by consent of parties, to meet the insurer's objection, the latter, reciting that C. had purchased the property, indorsed an approval.-Held, there was no breach of a condition not to assign without the insurer's approval.

It mry be inferred, under such circumstances, that the assignment was made to take effect on the insurer's approval.

An assignment so made does not violate a condition which requires that the consent of the insurer shall precede the assignment.

A transfer by the assured of a portion of the thing insured, does not avoid the policy as to his remaining interest.

The decisions in Tillou v. The Kingston Mut. Ins. Co. (1 Seld., 405) and

Manley v. The Insurance Company of North America.

Murdock v. The Chenango Co. Mut. Ins. Co. (2 Coms. 210), explained, and the difference in practice, in like cases, at the time of those decisions and under the Code, pointed out. Per MARVIN, J.

APPEAL from judgment upon the decision and report of

a referee..

The defendant issued to the plaintiff a policy, August 31, 1866, whereby it insured the plaintiff against loss or damage by fire to the amount of $5,000; $3,500 on his frame house, and $1,500 on his three barns, being $500 on each barn, for the period of three years.

November 4, 1867, the house and one of the barns were destroyed by fire, and one of the barns damaged to the amount of $100. This action was brought to recover these losses.

A further statement of the case, and the questions made, appears in the opinion.

Henderson & Wentworth, for plaintiff.

Wilkes Angel, for defendant.

Present-MARVIN, LAMONT and BARKER, JJ.

By the court-MARVIN, P.J. The referee found the issuing of the policy, and the loss while the policy was in full force; that the house and barn destroyed were of the value of $4,000, and upward; that the damage to another barn was $100; that the plaintiff gave due notice to the defendant of the fire, with proof of the loss and damage occasioned thereby, and as a matter of law he decided that the plaintiff was entitled to recover $4,100, and interest $263.10.

The defendant filed several exceptions, some of which will be noticed hereafter.

At the close of the evidence the defendant's counsel requested the referee to find and decide, as matter of law, certain propositions; and the referee refusing so to find and decide, the counsel excepted. Some of these will be here

after noticed.

Manley v. The Insurance Company of North America.

The counsel for the plaintiff has constructed his brief and made his argument upon the theory that no questions of fact are presented for review except those found by the referee; and that no question of law can be raised except upon the facts found, and upon the admission and rejection of evidence during the trial, and on the motion for a nonsuit. This position of the counsel is erroneous. He cites Grant v. Morse (22 N. Y. R., 323), Phelps v. McDonald (26 N. Y. R., 82). These cases relate to the jurisdiction of, and practice in the Court of Appeals, where questions of law only are reviewed. The jurisdiction of this court is more extended. "An appeal upon the law may be taken to the General Term from a judgment entered upon the report of referees or the direc tion of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees." (Code, § 348; see also S$ 267, 268, relating to trial by the court.) Upon an appeal from the judgment, when the trial has been by the court, the questions of law or fact, or both, may be reviewed by the General Term.

The review is in the same manner, embracing questions of law and fact, when the appeal to the General Term is from a judgment entered upon the trial by referees. (Code, $272.) If a party desires a review upon the evidence appearing on the trial, either of the questions of fact or of law, he may make a case or exceptions in like manner as upon a trial by jury. (§ 268.) When the trial is by jury, exceptions may be taken and stated in a case or separately, with so much of the evidence as may be material to the questions to be raised.

If the evidence necessary to show the pertinency of the exceptions only is stated, the case or exceptions is a simple substitute for the old bill of exceptions. But the case may contain all the evidence and the exceptions, and upon a motion in such case, at Special Term, for a new trial, the exceptions and the evidence are before the court for review, and a new trial may be granted upon the exceptions or upon the ground that the verdict is against evidence, and an appeal

Manley v. The Insurance Company of North America.

lies to the General Term from the decision of the Special Term. (Code, §§ 264, 349.) If the party does not complain of the verdict, the case should only contain the exceptions with so much of the evidence as may be material to raise the questions presented by the exceptions. (Code, § 264, Rule 36.)

Upon an appeal to the General Term, from the judgment, questions of law, raised by the exceptions only, are examined, as we have seen by a reference to § 348. The facts are only reviewable by the General Term in appeals from judgments, "when the trial is by the court or referees."

Referees, are required to "state the facts found and the conclusions of law separately." (Code, § 272.)

In Johnson v. Whitlock (3 Kern., 344), Judge COMSTOCK CONsidered this provision of the Code, and came to the conclusion that the referee was not required, in his report, to state the facts found by him, but that the findings of fact might be omitted until a case should be made. Although it would not, I think, be difficult to show, from an examination of the Code, keeping in mind the history of the amendments made from time to time to §§ 267, 268 and 272, that the learned judge fell into error, and that, in truth, it was never intended to relieve the referee from the duty of stating in his report the facts found by him, it is quite unnecessary to make the examination, as the Supreme Court, soon after the decision in the Court of Appeals, enacted a rule that, "upon a trial by referees they shall, in their decision and final report, state the facts found by them and their conclusions of law separately; a copy of which shall be served with notice of the judgment." (See Rule 32, of 1858.) (See Rule 32, of 1858.) The language of this rule is clear. The referee is required in his report to state the facts found by him. In the present case, the report of the referee states some facts found by him, but omits to notice certain other questions litigated on the trial, and the defendant complains of such omission. It would have been more satisfactory if the referee had found directly upon the question whether the risk had been increased by a change