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words used are to be taken in their ordinary and proper sense, unless they appear to have been otherwise used. Savage v. Howard Insurance Co., 52 N. Y. 502, 504, 11 Am. Rep. 741; Schoonmaker v. Hoyt, 148 N. Y. 425, 431, 42 N. E. 1059. The written must prevail over the printed part. Harper v. New York City Ins. Co., 22 N. Y. 442; Kratzenstein v. Western Assurance Co., 116 N. Y. 54, 57, 22 N. E. 221, 5 L. R. A. 799. But where the policy "contains a promise to pay a certain specified sum, and this is followed by obscure clauses, difficult to be understood, or requiring expert knowledge for their comprehension, they will not be construed as intended to impair the promise, but should receive the construction the insurer had reason to suppose was put upon them by the insured. To effect an impairment of the original obligation, the language of the subsequent clauses must be clear and unambiguous.” Wadsworth v. Jewelers' & T. Co. of New York, 132 N. Y. 540, 29 N. E. 1104. In case of doubt or uncertainty as to the meaning of the policy, it must be resolved in favor of the assured, for the reason that it was the society who prepared it; and, if any doubt exists as to the meaning of the terms employed, the society is responsible for it, it being its own language. Janneck v. Met. Life Ins. Co., 162 N. Y. 574, 57 N. E. 182; Marshall v. Commercial Travelers' M. A. Assn., 170 N. Y.434, 63 N. E. 446. “The reason of the rule that the language of an instrument is to be construed against the person who proposes it rather than against the person who is invited to accept it is that men are supposed to take care of themselves, and that he who chooses the words by which a right is given, ought to be held to the strict interpretation of them, rather than he who only accepts them.” Gillet v. Bank of America, 160 N. Y. 549, 555, 55 N. E. 292. On the face of the policy in question the words to which allusion has already been made, and by which the assured is referred to the second and third pages, are in bold type, and as follows: "The Loans, Surrender Values, Bonus Guarantee, Options, Privileges and Conditions.” Turning to the second page there is found (1) a heading “Table of Loans and of Surrender Values”; another (2) “Bonus”; then (3) “Options”; leaving for the third page, as a heading, only "Privileges and Conditions." Under these words are nine subheadings, the first three being as follows: (1) "Incontestability"; (2) "Freedom of Travel and Occupation”; (3) "Facility in Making Payments." As already observed, the first sentence of this provides for the method by which payment of premiums may be made, and then, in the same paragraph, follows another sentence, quite foreign to the title under which the defendant claims the deduction. At the outset is the promise to pay $10,000 on proof of death, “providing this policy is then in force.” There is no other condition. The promise, on its fulfillment, becomes absolute. Olmstead v. Keyes, 85 N. Y. 593, 598. Would the casual, or even careful, reader of the first page of the policy, notwithstanding he is there referred to the “Privileges and Conditions,” to be found on the third page, be likely to understand that the "Privileges and Conditions" and *Facility in Making Payments" thus given him would scale down his policy the amount of a half year's premium? If not, and the defendant was cognizant of the fact, the assured would not be bound, because "when the language used in a policy may be understood in more senses and 120 New York State Reporter than one, it is to be understood in the sense in which the insurer had reason to suppose it was understood by the assured." Per Earl, J., Dilleber v. Home Life Ins. Co., 69 N. Y. 256, 263, 25 Am. Rep. 182. Returning to the face of the policy, no reference is made to “premiums annually in advance," to "semiannual or quarterly installments," nor to "full year's premium”-terms employed in the “Facility” paragraph. Nevertheless, it is stated in the paragraph mentioned, in words not to be misunderstood, that the premium is based on the receipt of an annual premium in advance. This must be paid, viz., $767.80, to require the insurer to pay the full sum of $10,000; that result is attained by deducting the installment payable February 9, 1903. If I am correct in these views, the plaintiff is not entitled to recover beyond the amount tendered and paid.
Judginent is directed accordingly, with costs to the defendant from April 28, 1903 .
Upon the trial the defendant, by its witness, Mr. Van Cise, gave certain evidence, subject to objection, regarding the manner in which life insurance calculations are made, and the custom of life insurance companies. The rights of the parties here are fixed by contract, and may not be varied by mathematical calculations, conducted by the defendant alone or by other insurance companies, particularly when knowledge of the custom was not brought home to the assured. The evidence thus objected to is stricken out, with exception to defendant.
(42 Visc. Rep. 287.)
PAKAS v. IIOLLINGSHEAD et al. (Supreme Court, Trial Term, New York County. December, 1903.) 1. SPLITTING CAUSE OF ACTION-BREACH OF CONTRACT.
Plaintiff purchased of defendants bicycle pedals to a certain amount for a fixed price, to be delivered in installments within a certain time. On failure to make deliveries, plaintiff brought an action to recover for the refusal to deliver the amount due at the time of the beginning of the suit, and recovered damages therefor. Held that, the contract being a single contract, the vendee's recovery of damages for nondelivery of certain installments under the contract past due when he sued barred him from thereafter recovering on the same contract for the remaining installments when past due. Action by Solomon L. Pakas against William P. Hollingshead and others. Motion to dismiss complaint. Granted.
See 66 N. Y. Supp. 1138.
GREENBAUM, J. The defendants, by written contract dated August 30, 1898, sold to the plaintiff 50,000 pairs of Hercules bicycle pedals at certain stipulated prices; deliveries to begin immediately; 500 pairs weekly until December ist; after that, 1,000 pairs weekly until expiration of contract. Terms of payment, “Sight draft with the document attached.” The pleadings and proofs show that the defendants only delivered 2,608 pairs of pedals under the contract; that they refused to make any further deliveries ; that thereafter, and on or about March 15, 1899, the plaintiff brought an action against the defendants in the City Court of the city of New York to recover damages for the breach of the contract, by reason of defendants' refusal to deliver 19,500 pairs of pedals, the quantity to which the plaintiff was then entitled; and that plaintiff thereafter recovered a judgment in said action for the full amount of damages claimed. The present action was brought in February, 1900, subsequent to the time fixed for the delivery of all of the 50,000 pairs of pedals, and damages are sought to be here recovered for the failure on defendants' part to deliver the quantity of pedals to which the plaintiff would have been entitled after March 1, 1899. The defendants rely upon the judgment in the City Court as a bar to any further recovery. The learned counsel for the plaintiff in his brief describes the action in the City Court as one brought for damages for the breach of the contract here involved, and the complaint, after alleging a breach of the contract on defendants' part in refusing to deliver the 50,000 pairs of pedals, alleges that "thereafter, and on or about the 15th day of March, 1899, the plaintiff commenced an action against the defendants in the City Court of the city of New York to recover damages for the breach of the contract for the failure on the part of the defendants to deliver to the plaintiff" the number of pedals which the defendants were then obligated to deliver. Although some evidence was adduced as to a further demand by the plaintiff upon the defendants after March, 1899, for deliveries of the pedals under the contract, it is apparent that not only was such demand unnecessary under the pre-existing facts as established upon the former trial, but that the plaintiff evidently so considered the law, because the complaint is silent as to any such demand. It is therefore obvious that not only is this action brought upon the same contract as that involved in the City Court action, but for the identical breach thereof. It is stated by plaintiff's counsel that no adjudication can be found in this state touching the question of a vendee's right to maintain successive actions for a breach of a contract where the deliveries were to be made in installments, but that authority for such procedure will be found in two decisions of sister states. But without attempting to discuss or distinguish either of these cases, it seems to me that there is no difficulty in disposing of the question presented under the wellsettled principles established by the decisions in this state. The right of a party to a contract, upon such a breach thereof by the other as amounts to a repudiation, to elect to treat the contract as still in force and pursue his remedies thereunder, or to consider it at an end and sue for damages upon the breach, is well recognized. Howard v. Daly, 61 N. Y. 362, 374-377, 19 Am. Rep. 285; Nichols v. Scranton Steel Co., 137 N. Y.471, 33 N. E. 561. Thus, upon the failure of a purchaser to perform a contract for the sale of personal property, the vendor, as a general rule, has the election of remedies, as illustrated in Dustan v. McAndrew, 44 N. Y. 72. In the case of the failure of the vendor to deliver under such a contract of sale, the purchaser being ready to perform, there is obviously nothing else for the latter to and 120 New York State Reporter do, if he is damnified by the act of the vendor, than to treat the contract as repudiated, and to sue for damages for the breach of the entire contract. In other words, the effect of a breach of the contract by a vendor is the same as that of a breach by a vendee; the only difference being in the remedies available to the respective parties. In the case of
a vendee's breach, the vendor is in a practical situation to permit him, if he choose, to treat the contract as in effect, and enforce the vendee's liability thereunder, while in the case of a vendor there seems no other remedy open than to treat the contract as repudiated, and sue for damages for the breach. Elliott v. Miller (Com. Pl.) 17 N. Y. Supp. 526. It therefore follows that the prior action brought by the plaintiff in the City Court must of necessity have been brought as one for damages for breach of the contract. Plaintiff had the unquestioned right, when he brought his action in the City Court, to recover damages for a breach of the entire contract, notwithstanding that the time for delivering all of the 50,000 pairs of pedals had not then arrived. Nichols v. Scranton Steel Co., 137 N. Y. 488, 33 N. E. 561. It is well settled that “all damages accruing from a single wrong, though at different times, make but one cause of action, and all debts or demands already due by the same contract make one entire cause of action.” Secor v. Sturgis, 16 N. Y. 557. There is no doubt that successive recoveries under such a contract of sale as here existed would be permissible, where independent causes of action are created by performance, as in the case of the vendor seeking to recover for deliveries made under the contract in suit, but the authorities are easily reconciled that there can be but one recovery where the damages arise out of a single wrong. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Seed v. Johnston, 63 App. Div. 340, 71 N. Y. Supp. 579; McCleary v. Malcom Brewing Co., 56 N. Y. 531; 67 N. Y. Supp. 258. The action of the plaintiff in omitting
. to avail himself of the right to demand all the damages to which he would have been entitled under the contract, upon a breach by the defendants, gives him no right to bring successive actions for various items of damages. Samuel v. Fidelity & Casualty Co., 76 Hun, 308, 27 N. Y. Supp. 741, affirmed on opinion below in 150 N. Y. 583, 44 N. E. 1128. The motion to dismiss the complaint must be granted.
(91 App. Div. 355.)
DUNSTON v. CITY OF NEW YORK et al.
(Supreme Court, Appellate Division, First Department. February 12, 1902) 1. MUNICIPAL CORPORATIONS—WATER PIPES-VEGLIGENT MAINTENANCE-LIA
A city is liable for damages caused by the escape of water from pipes negligently permitted to remain in a leaky condition after reasonable notice to the city of the condition, although it was caused primarily by the negligence of an independent contractor, for whose acts the city was not
responsible. 2. SAME-GOVERNMENTAL FUNCTIONS-FIRE PROTECTION-NONLIABILITY.
A city is not relieved from liability for the maintenance, in a negligent condition, of a lateral water pipe, connecting a fire hydrant with the principal main, on the theory that in maintaining such pipe it is performing
a governmental function, viz., fire protection, where the principal main was used for all the purposes of city water supply, and the break in the pipe causing the damage extended from the lateral hydrant pipe into the principal main.
Van Brunt, P. J., and Ingraham, J., dissenting. Appeal from Trial Term, New York County.
Action by Eugene W. Dunston against the city of New York and others. From a judgment for plaintiff, and from an order denying a new trial, defendant city of New York appeals. Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Chase Mellen and Theodore Connoly, for appellant.
Franklin Pierce, Dill & Baldwin, and George L. Rives, for respondent.
LAUGHLIN, J. The recovery is for damages to plaintiff's candied fruits, which were in the cellar of premises occupied by him at No. 143 Chambers street, in the city of New York, caused by flooding from a break in a T or branch connecting a 12-foot main in the middle of Chambers street with a hydrant in front of neighboring premises. On the 14th day of November, 1901, the defendant Gerken applied for and obtained a permit, from the superintendent of street openings, paving, and repaving, to construct a vault in front of premises situate at the northwest corner of Chambers and Hudson streets, upon condition that he construct a recess or chamber for the existing hydrant or stopcock in front of said premises in Chambers street, pursuant to a plan filed; and the permit further recited :
“It is distinctly understood that this permit gives no authority, and it is strictly forbidden, to disturb, by excavation or otherwise, or in any way dam. age or interfere with the proper use of, any
hydrant or stopcock, or stopcock chamber or water pipe, or do anything to prevent the proper use of any hydrant or stopcock, or expose them to freezing."
A lot 20 feet in width separated Gerken's premises from those occupied by the plaintiff. The excavation was commenced for the work authorized by this permit on or about the 14th day of November, 1901, by the defendant Reilly under a contract with Gerken. The lateral pipe connecting the hydrant with the main was 4 inches in diameter and about 15 feet in length. In making the excavation, about 27/2 feet of this pipe from the hydrant toward the main were uncovered and undermined. The hydrant and pipe thus uncovered, projecting into and suspended over the excavation, weighed from 275 to 300 pounds. The hydrant was supported by chains passing around timbers extending across the excavation above. There was a manhole and stopcock for turning off the water about 6 feet from the hydrant or 37/2 feet beyond the outer edge of the excavation.
At about 11 o'clock in the evening of December 29, 1901, the pipe broke in the vicinity of the stopcock, the break extending out towards the main. There had been a leak in the pipe in that vicinity for many days. The soil was sandy, and the water percolating through the sand, and following the pipe, dripped into the excavation, softening the soil, and gradually undermining the sides of the excavation upon which