Audubon v. . Excelsior Insurance Company
New York Court of Appeals
Appeal by the defendants from a judgment of the Court of Common Pleas of the city and county of Hew York. The action was brought in February, 1859, on an alleged contract of insurance against fire, of certain engraved plates and unbound letter-press matter, for “Audubon’s Quadrupeds of Horth America,” which, it was alleged, the defendants had agreed to insure for one month, from March 4th, 1854, in the shop of the binder, at Ho. 10 Spruce street, Hew York.
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Appeal by the defendants from a judgment of the Court of Common Pleas of the city and county of Hew York. The action was brought in February, 1859, on an alleged contract of insurance against fire, of certain engraved plates and unbound letter-press matter, for “Audubon’s Quadrupeds of Horth America,” which, it was alleged, the defendants had agreed to insure for one month, from March 4th, 1854, in the shop of the binder, at Ho. 10 Spruce street, Hew York. The answer was a denial of the alleged contract, and the statement of a former action for the same cause, in which, it was alleged, a…
1Concurrence
The judgment in the former action would have been a bar to the present suit, but for the subsequent order of the court. But the Court of Common Pleas had jurisdiction over the record in that action. It could set aside the decision of the referee for irregularity, or on the ground of surprise or newly-discovered evidence, or it could order it amended if a mistake had occurred, or it could order a new trial on the merits; and it could, moreover, at any time before final judgment, allow the plaintiff to discontinue, upon terms. The grounds upon which the amendment was allowed do not appear from…
2Cases cited3 opinions
- McMasters v. Westchester County Mutual InsuranceNew York Supreme Court · 1841
- Hess v. BeekmanNew York Supreme Court · 1814
- Lee v. CurtissNew York Supreme Court · 1819