Manley v. The Insurance Company of North America. in the mode of occupying the house; also, whether the assured had sold or transferred the property insured; or had assigned the policy, &c. These questions were litigated upon the trial, and are made and presented here, and, as I have already said, they are before us for review, and we have no difficulty in considering them, and making a proper disposition of the case by affirming or reversing the judgment. As the language of the Code is that the referee "must state the facts found," and the rule is to the same effect, the court, in reviewing the evidence and the report, assumes that the referee has stated all the material facts which he found, affirmatively, and as to other questions upon which evidence was given, he was unable to find the facts as claimed by the unsuccessful party; in other words, he negatived them. He is required to state only the facts he finds, and if he says nothing upon a question litigated on the trial, the implication fairly is, that he did not believe the fact to be as the party trying to establish it claimed it to be; and such omission to notice the question in the report, is equivalent to a finding against the party. As the case contains the testimony, the question is presented to this court and examined precisely as though the referee had expressly found the fact against the party complaining. The question will then be, is such finding (express or implied, as the case may be,) against evidence. In this way the rights of the appellant are preserved, and it will hardly be necessary to send the case back to the referee. Cases, however, do occur where it is important, for an intelligent and proper review, that the findings of fact upon the issues or questions litigated, should be more ample than they are in the report; and in such cases the proper practice is a motion that the report be recommitted to the referee with directions that he find how the fact upon the evidence was. Such motions have been occasionally made and granted, though it is rarely necessary for the protection of the rights of the parties upon an appeal to this court. In this case some requests were made by the counsel for defendant that the referee should find and decide, as matter Manley v. The Insurance Company of North America. of law, certain propositions. The referee refused, and he excepted. The counsel was unfortunate in the form of these requests. He probably intended to request the referee to find the fact or facts indicated, and then, upon such fact or facts, that the referee should decide the law as requested. It is, undoubtedly, very proper, in many cases, that counsel should call the attention of the referee to the evidence, and request him to find a particular fact. If, however, the referee refuses, this is not a matter for exception. It is proper, sometimes, the facts being proven, to request the referee to decide in the manner indicated. In this way the attention of the referee is directed to the particular proposition of the counsel. It is, however, rarely necessary, so far as a review in this court is concerned; as by the Code and rule, the referee is to report the facts found by him, and the conclusions of law separately. It will be well, before dismissing these questions of practice, to refer to Grant v. Morse (22 N. Y. R., 323), (and there are some other cases) where, in the opinion, some remarks are made as to the proper practice. As I have already stated, the Court of Appeals examines questions of law only. For the purposes of a review in that court, the question of law must be distinctly raised; and if it arises from the evidence, the fact which the evidence proves, or tends to prove, must be distinctly found. "The party appealing must make his case, and have it settled, with such a statement of facts as will show necessarily that the law is in his favor. If he does not, every intendment, not absolutely unreasonable in itself, will be against him." The learned judge, after remarking upon the practice in settling the case, says: "It was their (appellant's) privilege in procuring the referee to settle it, to require him to find upon all the issues, one way or the other. If he refused so to do, no doubt the Supreme Court would have granted a new trial for that very reason; or if not, then an exception to such a refusal might perhaps have been available in this court." These remarks were not necessary to the decision of the case, LANSING VOL. I. 4 Manley v. The Insurance Company of North America. and I have quoted them for the purpose of saying that I think the suggestion that the Supreme Court would grant a new trial in case the referee should refuse, in settling the case, to find upon all the issues one way or the other, must have been made without such consideration as that learned judge usually bestowed upon cases examined by him. The remedy, in the Supreme Court, when the referee refuses to perform his duty, is by motion to the court for an order requiring him to act and to perform his duty. The case must be put in a proper condition for review in this court. If a party complains that the case has not been settled properly, in accordance with the practice, the remedy is a motion that it be resettled. It will be seen by consulting the cases in the Court of Appeals, supra, that a mode of preparing and settling cases tried by a referee was indicated, dispensing with the finding of facts by the referee in his report, and the preparation of those facts by the party making the case, subject to proposed amendments, and to a settlement by the referee. It has not been my intention, in anything I have said, to unsettle or disturb the general system thus indicated; but I have called attention to the rule adopted by the Supreme Court requiring the referee to state the facts found by him in his report. The great point with the Court of Appeals was, that the case settled by the referee should contain the findings of fact. The practice was here made to conform to the suggestions or requirements of the Court of Appeals, so that now the party appealing prepares a case, and in that case he inserts the findings of fact by the referee, and if satisfied with such findings, or if the findings of fact cover all the issues and questions litigated, then he does not propose the finding of any additional facts. If he thinks the issues are not all passed upon, he may, as I understand, propose the finding of additional facts; and so also as to the other party in proposing amendments. In this way the case will be in a condition to be reviewed in the Court of Appeals. In the Supreme Court, however, as the testimony is before the court, and the court reviews as well the questions of fact Manley v. The Insurance Company of North America. as of law, and applies the implication that as to all the ques tions upon which evidence was given, and as to which there is no express finding, the referee found against the appellant, or rather that he refused to find that the fact, as claimed, was established by the evidence, there is no difficulty in reviewing the case, though the referee has not found expressly upon some of the questions litigated. Proceeding to the case now before us, I am satisfied that it can be reviewed in this court upon this appeal, and disposed of in accordance with the rules of law and the rights of the parties. By one of the conditions of the policy, it was to become void if the risk should be increased by any means whatever. The defendant claimed that the risk was increased, and gave evidence upon that question. Whether the risk was increased was a question of fact; and as it does not appear from the report that the referee has expressly found upon this question, the implication is that he could not include it as one of the facts found by him; that he negatived this claim; and the question for this court is, was the evidence such as to require the referee to find that the risk was increased? The insurance was against loss or damage by fire on his (Manley's) frame house and his three barns, situate on the farm known as the Howe farm, Little Valley, N. Y. Nothing is said in the policy or conditions touching the occupancy of the buildings. It appeared from the evidence that at the time the insurance was effected the dwelling-house was occupied by Mrs. Howe and two children; by Rev. Mr. Scott, wife, and two children; Alonzo Ames, wife, and child; Rev. Mr. Willoughby; Mrs. Fay and daughter, and some others. That such families occupied separate apartments of the house. This was in August, 1866. Mr. Vashing, a witness for defendant, testified that he lived in the house when it was burned, and had from April previous; and that Welch moved in when he did, and that they kept boarders; did not keep it as a general boarding house; only boarded men at work for Welch; they had some boarders the night of the fire; upon an average Manley v. The Insurance Company of North America. had ten boarders. Welch was building the court house, and the boarders were at work for him; no fires were kept in the house for boarders; none in their rooms. I do not think that a finding that the risk had not been increased by the boarding of the mechanics at work upon the court house could be properly set aside. It is declared by one of the conditions of the policy that if the assured shall assign the policy, either before or after a loss, without the consent of the company indorsed thereon, or shall sell or transfer the property insured, the policy shall be null and void. The defendant claims a breach of both of these conditions. The referee is silent upon these questions, except that he says: "While the said policy was in full force" the house, &c., were destroyed. The referee ought in fairness to have met these questions, and stated the facts, which he understood the evidence to prove. were. The case shows that the interest of Manley in the property was that of a purchaser of the farm upon which the buildings He made the purchase of Chamberlain at $13,000; the contract bears date July 11th, 1866. Manley had made some payments and had possession. The fire was November 4th, 1867. The case contained a paper signed by Manley, and dated November 23d, directed to the defendant, in which Manley authorizes and requests that in the adjustment of his policy for loss, etc., the proceeds thereof be paid to Chamberlain. At the same time there was an indorsement on the back of the policy by which Manley transferred, assigned, and set over to Chamberlain all his right, title, and interest in the policy of insurance, and all benefit and advantage to be derived therefrom, on the two barns unburnt. The words "on the two barns unburnt" were not in the instrument when Manley executed it. The history is, the assignment was presented to the agent of the defendant for approval, and the agent refused to approve a general assignment, so far as the buildings burned were concerned, and the words restricting the assignment to the unburnt barns were then inserted, and the agent then reciting that Chamberlain had pu |