Frink v. Hampden Insurance Company. proceeds to state that "The insurance being upon the interest of the mortgagor, and he having parted with that interest before the fire, no loss was sustained by him, and of course, none was recoverable by his assignee or appointee." The effect of, and the irresistible inference to be drawn from, these observations is, that but for the fact that the mortgagor had parted with his interest, and had sustained no loss, the plaintiff could have recovered as his appointee. (See also Bidwell v. Northwestern Ins. Co., 19 N. Y. Rep. 179, 183.) The case above cited, (17 N. Y. Rep. 391,) establishes that the loss being payable to another party, instead of the insured, was merely a designation of the person to whom it was to be paid after it had accrued, and was not an assignment of the policy because payable to another. In the case at bar it was an insurance of Hurst, and the plaintiff was the appointee to receive the money in the event of a loss by fire. It was only an agreement collateral to, and dependent upon, the original undertaking, that after a loss had occurred, and not before, the money should be paid over to the plaintiff, and not an assignment of the policy before any loss. If the case of Grosvenor v. The Atlantic Fire Insurance Co., is a reliable authority, then it was not necessary for the plaintiff to allege in his complaint that he had an insurable interest, and the plaintiff, to whom the loss was payable as appointee, can maintain this action; and unless there is some authority that overrules the doctrine laid down, it must be considered as conclusive in favor of the plaintiff's right to recover. The defendant's counsel insists that there is such authority, and our attention has been particularly directed to the case of Freeman v. The Fulton Insurance Co., (14 Abb. Pr. Rep. 398,) which is mainly relied upon to sustain an adverse theory. In that case one Stetson was the owner of the steamer 'Cataline' at the time of the issuing of the policy, and the defendants insured the plaintiffs, or whom it might concern, and the loss, if any, was payable to the plaintiffs. Frink v. Hampden Insurance Company. It was held that the complaint was demurrable, and that in order to recover upon a fire insurance policy for the amount of the loss, the complaint must allege that the plaintiff had an interest in the thing insured at the time of the loss; unless the claim was assigned to him afterwards or he sued as trustee of an express trust; and if he sued as trustee or agent, the complaint should allege the existence of such trust and show his authority to collect the amount insured. To make the case cited parallel to the one at bar, Stetson should have been the insured party, and the loss payable to the plaintiffs. As it stands, the plaintiffs, or whom it might concern, were the parties insured. The plaintiffs had no insurable interest, and Stetson was not insured, nor did it appear that the plaintiffs had acted as the trustees or agents of Stetson, the owner. Entirely a different question was presented from the one now considered, and I think the authority last cited is not in conflict with 17 N. Y. Rep. And although referred to approvingly in Fowler v. The New York Indemnity Insurance Co., (26 N. Y. Rep. 425,) yet I understand it was only for what it actually did decide, and not as sustaining a doctrine adverse to the former case. The facts presented by the complaint here, do not show an assignment before loss to a party who had no interest in the property, within the principle of several cases to which we have been referred, (Peabody v. Washington Insurance Co., 20 Barb. 340; Fowler v. N. Y. Indemnity Insurance Co., 26 N. Y. Rep. 425; Ruse v. Life Insurance Co., 23 id. 516; Hooper v. Hudson River Insurance Co., 17 id. 427; Granger v. Howard Insurance Co., 5 Wend. 202,) but a case where the relation of insurer and insured existed between the defendant and Hurst the owner of the property, until a loss had taken place, when the plaintiff, as the appointee of the insured, steps in and claims under the agreement that the defendants should pay the money to him. There are several other points urged by the defendant's Finney v. Veeder. counsel, that can not be upheld, if the views already expressed are sound and maintainable; and hence a discussion of them is not required. My opinion is that the case of Grosvenor v. The Atlantic Fire Insurance Co. is a decisive authority upon the question discussed, and that the demurrer to the plaintiff's complaint was not well taken. The order overruling the demurrer must be affirmed with costs, with leave to withdraw the demurrer, and put in an answer upon the usual terms. [ALBANY GENERAL TERM, September 18, 1865. Hogeboom, Miller and Ingalls, Justices.] FINNEY US. Veeder. An offer, by the respondent, to let a judgment appealed from be corrected, by deducting therefrom a specified sum, can not be given in evidence on the hearing of the appeal, where it is used for a purpose wholly unauthorized and well calculated to prejudice the appellant's case; as where, previous to the introduction of the offer, the counsel for the respondent stated to the jury that the offer was made because the appellant had no confidence in his case; and neither the court nor the counsel informed the jury of the proper effect of the offer, upon the question of costs. HIS is an appeal from a judgment of the county court of THIS Albany county. The action was commenced in a justice's court, where a judgment was rendered in favor of the plaintiff for $100 damages, besides costs. From that judgment the defendant appealed to the county court, and recovered judgment for costs. After the notice of appeal was served, the plaintiff served upon the defendant the following offer, entitled in the cause, and directed to the attorneys for the appellant: Finney v. Veeder. "Please to take notice that the respondent offers to let the judgment herein be corrected by deducting therefrom the sum of twenty-five dollars. July 7, 1862. P. D. NIVER, Respondent's Attorney." This offer was not accepted by the appellant. Ira Shafer, for the appellant. L. Tremain, for the respondent. By the Court, INGALLS, J. The only question involved in this appeal is whether error was committed in allowing the above offer to be given in evidence under the circumstances, in the manner, and for the purpose for which it was intended. The only legitimate effect of the offer under § 371 of the Code, was upon the question of costs, and I do not think it was necessary even to prove it upon the trial, to secure the benefit of that provision, as it might have been used upon the adjustment of costs. But assuming that it could properly be proved upon the trial, it does not follow that it was appropriately received upon the trial in the county court. It appears from the case, that it was used by the defendant for a purpose wholly unauthorized, and well calculated to prejudice the plaintiff's case. Previous to the introduction of the offer, the counsel for the defendant stated to the jury that the offer was made because the plaintiff had no confidence in his case. This statement was objected to by the plaintiff's counsel, on the ground that there had been no proof on the subject, and that if an offer had been made, it could not be proved to the jury. The offer was then given in evidence by the defendant and read to the jury, under the plaintiff's objection. It is insisted by the defendant's counsel that it was properly introduced, to apprise the jury of its effect upon the question of costs. If it be assumed that this position is sound, the difficulty yet remains, as the offer was not used for that Welles v. Thornton. purpose. Neither the court or the counsel informed the jury of the proper effect of the offer. On the other hand we must assume, from the facts detailed in the case, that an erroneous impression was produced upon the minds of the jury in regard to the object of such offer, which was allowed to remain uncorrected by the court, and probably did influence the jury to the prejudice of the plaintiff. It is said by the defendant's counsel that, as the verdict was for the defendant, it is apparent that no injury resulted from the introduction of the offer, as it could only effect the amount of damages in case the plaintiff prevailed in the action, I do not think we should thus assume, as it is impossible to calculate how far the jury might have been influenced by the improper use of such evidence. An error can only be disregarded where it affirmatively appears that no possible injury could arise to the party complaining. (Worrall v. Parmelee, 1 Comst. 519.) I am, therefore, of opinion that the judgment must be reversed, and a new trial had in the county court, with costs to abide the event. [ALBANY GENERAL TERM, September 18, 1865. Hogeboom, Miller and Ingalls, Justices.] 45b 390 33ap268 WELLES VS. THORNTON. Where the affidavits presented to a judge, on an application for an order of publication, tend to establish the requisite jurisdictional facts to authorize him to make the order, if he errs in his decision upon such evidence, and grants the order, it is a judicial error, which may be reviewed and rectified upon appeal, or on motion to set aside the order and proceedings, but can not be questioned in a collateral proceeding. A mistake, or error of judgment or opinion, in passing upon the force and weight of such evidence, will not render the order or process issued void, but simply irregular and erroneous. |