This is an action upon a fire policy issued by the defendants to one G. Elle, insuring him for one year in the sum of $1,000, on a stock of ready-made clothing and materials, in a brick building, No. 156½ River street, in the city of Troy. It was claimed by the plaintiffs that the policy had been assigned to them by Elle, with the consent of the defendants, and had been, with the consent of the defendants, transferred to the frame building on the east side of Whitehall street, West Troy. The cause was referred to a referee, who found the facts appearing on the trial, and gave judgment for the plaintiffs. The General Term of the Supreme Court reversed the judgment, but not upon the facts, as appears by their order, and ordered a new trial.
The facts found by the referee are as follows:
1. That the defendants, for the consideration of the sum of $10, duly issued to one G. Elle the policy of insurance described in the plaintiffs' complaint, and upon which the action was brought.
2. That, afterward, the defendants, for a valuable consideration, consented to a transfer of said policy, by an instrument in writing, to the two-story frame building on the east side of Whitehall street, West Troy, in consideration of five dollars paid. *Page 674
3. That said G. Elle and the plaintiffs afterward, and on the 8th of September, 1857, duly obtained, from the defendants, a consent that the interest of the said G. Elle in said policy might be assigned and transferred to said plaintiffs, which was and is indorsed upon said policy, in writing, as follows:
"Consent that the interest in this policy may be transferred to N. Marco Son, as purchasers of the property.
"TROY, Sept. 8th, 1857. J.G. BACON, Agent."
4. That Samuel Marco did not, at the time said consent was obtained, represent to the agent or agents of the defendants that the plaintiffs had purchased the property insured by said policy, and that said Marco did not, at that time, represent to the agent or agents of the defendants that said insured property was then in the plaintiffs' store.
5. That the clerk of the defendants, Hays, did state to said Samuel Marco, at the time application for such consent was made, in substance, that it was the practice of insurance companies to have the policy follow the goods originally insured.
6. That said consent was not fraudulently obtained.
7. That the plaintiffs did not purchase the property originally insured by said policy, or any part thereof.
8. That the plaintiffs purchased the unexpired term of said policy from said Elle, and so informed said defendants at the time of the consent to the assignment and transfer to the plaintiffs by the defendants, as above set forth, and that said consent was not fraudulently obtained.
9. That after the above consent was obtained, and on the 8th of September, 1857, the said Elle, by an instrument in writing, duly sold and assigned his interest in said policy and unexpired term thereof, for a valuable consideration, to the plaintiffs.
10. That, after such consent obtained from the defendants, and assignment made by Elle to plaintiffs, the defendants made personal inspection of the store of the plaintiffs, containing a stock of goods of the same kind and character as *Page 675 that upon which the said policy was originally issued, at No. 109 Congress street, Troy, and after such inspection, by an instrument in writing annexed to said policy, consented to the transfer of said policy to, and to cover the said stock of goods of said plaintiffs, and said plaintiffs paid to the said defendants five dollars for the increased risk, such consent being the one of September 8th, 1857, above set forth. (By a reference to the testimony, it is apparent that the referee by mistake referred in his report to the consent of September 8th, 1857, when in fact he intended to and did refer to the consent of October 3d 1857, which was also indorsed on the policy with the two consents of September 8th, 1857, and is in these words:
"This policy is hereby transferred to the frame building known as No. 109 on the north side of Congress street, Troy, and five dollars consideration paid for the increased risk.
"TROY, Oct. 3d, 1857. J.G. BACON, Agent. Per H.")
11. That the usual price for an original insurance, of the character and amount covered by said policy, was $20, and the defendants received, in the aggregate, for the risk under this policy, $20.
12. That said store of the plaintiffs was, on the 20th of December, 1857, totally destroyed by fire; that the plaintiffs, by having their entire stock of ready-made clothing and materials for making the same destroyed by said fire, sustained a loss of upward of one thousand dollars.
13. That there was no proof that the said fire was occasioned by the plaintiffs.
14. That due proofs of loss on the said policy were given to the defendants, by the plaintiffs, on the 20th of March, 1858, and that, from the above facts, the referee found, as a conclusion of law, that the said plaintiffs were entitled to recover the amount of said policy, and the interest thereon.
As already observed, this court, upon this review, is bound, by repeated adjudications, to the truth of the facts, as found by the referee; and if there is no error in law upon these facts, *Page 676 or those which we are authorized to assume, were found by the referee, to sustain his judgment, then it is the duty of this court to affirm it.
We are without any intimation of the reasons which influenced the Supreme Court in granting a new trial; and as that court has not said that it reversed the judgment on the report of the referee, on questions of fact, we are to assume that it was reversed on a question of law, or, in other words, that the Supreme Court held, taking the facts as found by the referee, that he had erred, in his conclusion of law thereon, that the plaintiffs were entitled to recover. In this, we think, the learned court were clearly in error.
From the facts found by the referee, the arrangement made by the plaintiffs with the defendants was, in all respects, the equivalent to the taking out, by the plaintiffs, from the defendants, of a new policy on their stock of goods, in the store No. 109 Congress street, Troy. The premium demanded was paid, and, without any fault on the part of the plaintiffs, a loss was sustained, to an amount greater than that covered by the policy. Proof of loss was made in due time, and according to the conditions of the policy, and no fact is found which casts any doubt upon the plaintiffs' right of recovery.
The legal conclusion of the referee was, therefore, undeniably correct; and the order granting a new trial should be reversed, and the judgment upon the report of the referee affirmed, with costs.
Judgment accordingly. *Page 677