be found with due diligence, and the corpora- 12. 4. In certain contingencies, not important here, upon the secretary of state. STATUTES In arriving at the legislative intent, the court may consider, in addition to the language, the relevant conditions existing when it was adopted, the evils it was designed to remedy, and the reasons for and the spirit of the enactment. Cent. Dig. § 262; Dec. Dig. 184.] 3. STATUTES 181(1)-CONSTRUCTION-LEG- If the legislative intent, as determined, is within the scope of the language, it is a part of the statute, though not plainly expressed, and must be given effect, but the court cannot, through construction, enact an intent the Legislature totally failed to express. Under this section of the Code of Civil Procedure the service of the summons on William L. Marcy, the designated agent for the service of process on the Pere Marquette Railroad Company, was not sufficient service upon the receivers. The receivers were not required to designate a person on whom process might be served (United States v. Nixon, 235 U. S. 231, 35 Sup. Ct. 49, 59 L. Ed. 207), and Mr. Marcy was not their agent. [Ed. Note.-For other cases, see Statutes, The case is not within the reasoning of Ed-Cent. Dig. § 259; Dec. Dig. 181(1).] dy v. Lafayette because the station agent served in that case was the agent of the receivers as distinguished from an agent of the railroad company. 4. STATUTES 188-CONSTRUCTION - SPE 5. INSURANCE 266-STATUTES-CONSTRUCTION-WARRANTIES AND REPRESENTATIONS. Insurance Law (Consol. Laws, c. 28) § 58, stating the requisites of insurance contracts, requires that the policy itself shall contain ments which are warranties on their face must physically the entire contract, so that all statebe incorporated in the policy, or be abandoned as warranties. To effect the legislative intent, language may be freely dealt with, and the position of words shifted or the words enlarged or restrain[2, 3] Neither was the service of the sum-ed in their meaning and operation. [Ed. Note.-For other cases, mons on E. B. Johns, the general eastern see Statutes, agent of the receivers in the city of New Cent. Dig. §§ 266, 267, 276; Dec. Dig. 188.] York, sufficient service upon the receivers under the Code of Civil Procedure, even if Johns is regarded as the managing agent of the defendants. The Code contemplates that before service is made on the managing agent of a foreign corporation diligent efforts should be made to serve the officers of the corporation or its agent designated under the Insurance Law (Consol. Laws, c. 28). Service upon the managing agent can be resorted to only after efforts to reach the corporation more directly have failed. So far as the papers in this case show the receivers could have been served personally within the state, but no efforts to find them were made. For all that appears the receivers might have been in the New York City office when Johns was served. The papers should show that the plaintiff could not in the exercise of due diligence make service on the receivers with in this state. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 561; Dec. Dig. 266.] 6. STATUTES SUMPTIONS. 181(2)-CONSTRUCTION-PRE An unreasonable or unjust result was presumptively not intended by the Legislature, and will be avoided through legitimate construc tion. Cent. Dig. §§ 259, 263; Dec. Dig. 7. STATUTES 181(2).] 236-CONSTRUCTION-DEROGA TION OF COMMON LAW. A remedial statute, modifying rules of common law, must receive a strict construction on the question whether or not it does modify the common law, but if it replaces, in whole or in part, common-law rules, it must be given an The order appealed from should be re-application liberal, and, within its language, versed, with costs, and the question certified answered in the negative. ARCHER v. EQUITABLE LIFE ASSUR. commensurate with its purpose. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 317, 324, 325; Dec. Dig. 236.] 8. INSURANCE 253-POLICIES-STATUTESCONSTRUCTION. Insurance Law (Consol. Laws, c. 28) § 58, requiring that a policy of insurance contain the entire contract and that all statements purporting to be made by the insured shall, in the absence of fraud, be deemed representations and not warranties, must be construed to require that all statements made by the assured shall be purported by, or made to appear upon, the face of the policy. [Ed. Note.-For other cases, see Insurance, (Court of Appeals of New York. April 18, Cent. Dig. §§ 538-542; Dec. Dig. 253.] 1916.) 1. INSURANCE 152(3)-POLICY-CONSTRUCTION-STATUTES. Statutes prescribing the requisites of insurance policies must be read together with the policy in construing its terms. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 312; Dec. Dig. 152(3).] 9. INSURANCE 640(2)-ACTIONS-DEFENSES -PLEADING-SUFFICIENCY. A defense, in an action on a policy of insurance, that the policy was issued in reliance on statements, representations, and answers of the insured as to his previous medical history, which were fraudulent, not full and fair, and effected concealments material to the risk is in For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-28 sufficient in law for failing to show that the statements, representations, and answers were included in the policy. erence. The sufficiency of the defense, in law, depends upon an interpretation, in connection with the facts, of section 58 of the [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1617, 1618; Dec. 'Dig. 640(2). Insurance Law as enacted in 1906. (Cons. 10. INSURANCE 640(2)-ACTIONS-DEFENS-Laws, c. 28, § 58; Laws of 1906, c. 326, § 16). ES-PLEADING-SUFFICIENCY. A defense, in an action on a policy of insurance, that the insured violated an agreement not contained in the policy is insufficient in law on its face, since the entire contract must be expressed in the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1617, 1618; Dec. Dig. 640(2).] Appeal from Supreme Court, Appellate Division, First Department. The section is: void." "Policy to contain the entire contract; statements of insured to be representations and not warranties. Every policy of insurance issued or delivered within the state on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the state shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are indorsed Action by Georgia C. Archer against the upon or attached to the policy when issued; Equitable Life Assurance Society of the Unit- and all statements purporting to be made by the ed States. From an order of the Appellate insured shall in the absence of fraud be deemed Division (169 App. Div. 43, 154 N. Y. Supp.er of the provisions of this section shall be representations and not warranties. Any waiv519), affirming an order of the Special Term for judgment on the pleadings for plaintiff, defendant appeals by permission. Affirmed. The following questions were certified: "(1) Is the defense designated 'Second,' contained in the answer to the amended complaint herein, sufficient in law upon the face thereof? "(2) Is the defense designated Third,' contained in the answer to the amended complaint herein, sufficient in law upon the face thereof? "(3) Is the defense designated 'Fourth,' contained in the answer to the amended complaint herein, sufficient in law upon the face thereof?" The nature of the action and the facts, so far as material, are stated in the opinion. Allan McCulloh, of New York City, for appellant. John B. Stanchfield, of New York City, for respondent. COLLIN, J. [1] The action is to recover the sum payable to the plaintiff under the terms of a policy of the defendant insuring the life of Joseph D. Carroll. The policy forms a part of the amended complaint, which in the ordinary form avers the issuance of the policy, the death of the insured, the making of due proof of the death, the refusal of the defendant to pay, and the other requisite formal facts. The policy was issued July 1, 1912, and therefore subsequent to the adoption of the statute hereinafter consider ed. The defense designated 'Second,' which we will first consider, averred that the insured, when applying for and as an inducement to the issuance of the policy, deceived intentionally the defendant by stated representations which he knew to be false, and the defendant relied and acted upon in accepting the application and making the contract. The false representations related to facts which would enter into the estimation by the defendant of the risk to be assumed by it in effecting the insurance; that is, to the prior physical condition, in various respects, of the insured, the last time he had consulted with a physician, the causes of the deaths of his parents, and the time of the death and age at death of his father. They were not contained in the policy, either directly or by ref The section and the policy must be read together. Strauss v. Union Central Life Ins. Co., 170 N. Y. 349, 63 N. E. 347; Taylor v. N. Y. Life Ins. Co., 209 N. Y. 29, 102 N. E. 524. [2] The false and inducing statements set forth in the second defense were not incorporated in the policy when issued. The appellant asserts and argues that the section does not relate to or affect its right to declare and have adjudged void the policy, because the fraud of the insured, as alleged, entered into it, and fraud is a defense to any contract. The respondent asserts and argues that the section prohibits the defendant from invoking, as a defense fraudulent representations of the insured, entering into the extent or estimate of the risk, which are not incorporated in the policy when issued. We are to determine which assertion is valid. The meaning and intent of the section is, manifestly, not clear and certain through its language. We are therefore bound to search for the legislative intent in such facts and through such rules as may, in connection with the language, legitimately reveal it. We may consider, in addition to the language, the relevant conditions existing when it was adopted, the evils it was designed to remedy, and the reasons for and the spirit of the enactment. [3, 4] If the intent, as determined, is within the scope or capability of the language, it must be taken to be a part of the statute the same as if it were plainly expressed. To effect the intent, the language may be freely dealt with. The position of the words may be shifted or the words enlarged or restrained in their meaning and operation. The courts are bound to enforce an enacted intent no matter how inartistically or inaccurately it has been expressed. Matter of Meyer, 209 N. Y. 386, 103 N. E. 713, L. R. A. 1915C, 615, Ann. Cas. 1915A, 263; Woollcott v. Shubert, 217 N. Y. 212, 111 N. D. 829; Flynn v. Prudential Ins. Co., 207 N. Y. 315, 100 N. E. 794; Matter of Jannicky, 209 N. Y. 413, 103 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes N. E. 715. They may not, however, throughed as warranties. It was a matter of generconstruction, enact an intent which the Leg- al knowledge, of legislative knowledge and islature has not expressed at all. Furey v. of judicial knowledge, that all the statements Town of Gravesend, 104 N. Y. 405, 10 N. E. which are either warranties or representa698. tions are contained alike generally in the paper designated the "application.” The Legislature having enacted that nothing should be incorporated in the contract, that no warranties should be incorporated therein by a reference to the application, and thereby having in mind that the application should be indorsed or attached to the policy, further enacted the clause: Two conditions existing at its adoption the statute was plainly intended to remove. The one, the contract might, by a stipulation or reference within it, make a part of itself instruments, stipulations, statements, and agreements of the insured which the policy did not contain. Cushman v. U. S. Life Ins. Co., 63 N. Y. 404; Clemans v. Supreme Assembly R. S. of G. F., 131 N. Y. 485, 30 N. E. 496, 16 L. R. A. 33; Fitch v. American Popular L. Ins. Co., 59 N. Y. 557, 17 Am. Rep. 372. The other, the statements of the insured which were made a part of the contract by reference, indorsement or otherwise, or declared or agreed by the insured to be true, were warranties. Foot v. Etna Life Ins. Co., 61 N. Y. 571; Dilleber v. Home Life Ins. Co., 69 N. Y. 256, 25 Am. Rep. 182; Dwight v. Germania Life Ins. Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729; Gaines v. Fidelity & Casualty Co. of N. Y., 188 N. Y. 411, 81 N. E. 169, 11 Ann. Cas. 71; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. "And all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties." Those words, in connection with the requirement that the policy shall contain the entire contract, are susceptible of either of two constructions. The one, All the statements made by the insured, as purported or shown by the face of the policy, shall in the absence of fraud be deemed representations and not warranties. The other, All the statements made by the insured are shown by the face of the policy and shall, in the absence of fraud, be deemed representations and not warranties. The first is the equivalent of, All warranties made by the insured shall in A third condition existed, intimately relat- the absence of fraud be deemed representaed to those two, indeed quite the parallel tions, because the words "shall in the absence of the first, namely, the warranties and rep- of fraud be deemed representations" can apresentations made by persons insured, in the ply to only those statements which purport process of issuing the policy, might be, and to be warranties. Mere representations frequently were, as we may judicially know, would be deemed representations irrespective retained continuously and exclusively by the of the statute. The clause would not relate insurers. The insured persons neither had in any manner to the statements either withnor received duplicates or copies. They had in or without the policy, which were originalnot incentive or opportunity, from having ly representations. It follows that the repretheir statements before them, through in- sentations created by the metamorphosed corporation in the policy, to examine and warranties must be incorporated in the correct any errors in them arising through policy, while all other representations are mistake, carelessness, ignorance, or fraud, or to terminate the policy. Frequently they or their beneficiaries became first conscious of the errors, after payment of the premiums or dues through a period of years, when they were alleged by the insurers, in avoidance of the obligations to pay the sums insured. We have concluded that the Legislature intended to remove, and has removed by the section, this condition. ignored and unaffected. It follows, furthermore, that the insurers by abandoning warranties may avail themselves of all the representations although not incorporated in the policy. They may also incorporate in the policy such of the statements as they select, and withhold the statements remaining. Those effects might, within reason, mislead and create an erroneous sense of security on the part of the insured and their beneficiaries. [5] It is clear that the Legislature enacted by the section that the policy-that is, the [6] An unreasonable or unjust result was paper or document-should contain physical- presumptively not intended by the Legisly the entire contract. All of the stipula- lature, and will be avoided through legititions, agreements, or statements constituting mate construction. Matter of Meyer, 209 the contract must be placed, through the de- N. Y. 386, 103 N. E. 713, L. R. A. 1915C, 615, livery of the policy, in the possession of and Ann. Cas. 1915A, 263. The conditions which be and remain accessible to the insured. All induced the Legislature to require that all of the answers of the insured to material the stipulations and terms of the contract questions, all statements declared by him should appear within the policy would natuto be true, are, as a matter of law and of rally have induced it to require that the confact, a part of the contract, because they are ditions which are the basis of the contract warranties. Therefore, all those statements and upon which its validity depends should, which are on their face warranties must be likewise, appear upon the face of the policy. incorporated in the policy, either directly or The evils and pitfalls before the insured by indorsement or attachment, or be abandon-through his ignorance and the inaccessibility The order appealed from should be affirmed, with costs, and each of the questions certified answered in the negative. of terms of contract are, in part at least, [ the defendant violated an agreement which is those which are before him through his not contained in the policy, manifestly is ignorance and the inaccessibility of the repre- not sufficient in law upon the face of it. sentations made by him. Under the entire language of the section and the conditions existing at its enactment, the first construction constricts its purpose and effects too narrowly and unreasonably. The second construction expresses the legislative intent. [7] The section is remedial. It modifies rules of the common law. That' law is that in determining whether or not a statute abrogates or modifies a rule of the common law, the construction of the statute must be strict. When, however, a remedial statute does replace, in whole or in part, common-law rules, it must be given an application, liberal and, within its language, commensurate with its purpose. WILLARD BARTLETT, C. J., and HISCOCK, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. Order affirmed. (218 N. Y. 9) PEOPLE v. MANGANARO. (Court of Appeals of New York. April 18, 1916.) 1. CRIMINAL LAW 663-EVIDENCE-DOCUMENTS QUESTION FOR COurt. In a homicide case, the admissibility of a writing purporting to be signed by the defendant was for the trial justice to decide, in accordance with the rules of evidence and law. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1602; Dec. Dig. 663.] 2. CRIMINAL LAW 442-DOCUMENTAry Ev IDENCE-AUTHENTICATION. In a homicide case, where it was not shown with certainty and precision and beyond suspithat a writing purporting to be signed by the cion, either by direct or circumstantial evidence, defendant, and introduced as his will, was written shortly before or after the homicide by the defendant, or by another at his direction and suggestion, or that he could write or read writing in any language, its admission in evidence was error. [8] In the requirements that the policy should contain the entire contract and that "all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties," the Legislature enacted, through implication, that all statements made by the assured shall be purported by, or made to appear upon, the face of the policy. The section enacts: (a) The policy-that is, the document-shall contain the entire contract; (b) nothing shall be incorporated in the contract by reference to another writing or document not indorsed upon or attached to the policy when issued; (c) all the statements made by the insured, as warranties or representations, are those [Ed. Note.-For other cases, see Criminal which appear upon the face of the policy; Law, Cent. Dig. § 1027; Dec. Dig. 442.] (d) all statements, which in form are war-3. CRIMINAL LAW 442-EVIDENCE-Docuranties, shall in the absence of fraud be deemed representations and not warranties; and (e) any waiver of the provisions of this section shall be void. Whether or not fraud not relating to warranties or representations as defined by the law relating to life insurance, and therefore not affected by the section, may enter into and make void the contract we do not consider. The first question certified should be answered in the negative. MENTS-AUTHENTICATION-PRESUMPTIONS. Neither the fact that the name of the defendant was written at the end of a document introduced in evidence nor that it was found in the room which the defendant had occupied, created a presumption that he was its author. Law, Cent. Dig. § 1027; Dec. Dig. 442.] [Ed. Note.-For other cases, see Criminal 4. CRIMINAL LAW 720(9), 1186(4)—ARGUMENTS OF COUNSEL APPEAL TECHNICAL ERROR. In a homicide case, statements of the prosecuting attorney that physicians who testified for defendant committed perjury in order to win their fees; that under a verdict for the defendant he would go to an asylum and remain only so long as his insanity lasted; that after sending the deceased to a terrible death, he should not be allowed to take advantage of technicalities; and that the writing introduced in evidence could not have been written after the crime was comed-were improper and Code Cr. Proc. § 542, mitted, hence indicating that it was premeditatproviding that judgment in criminal cases should be given without regard to technical errors which did not affect the substantial rights of the parties, is not applicable. [9] The defense designated "Third" averred that the policy was issued by the defendant in reliance upon statements, representations, and answers of the insured pertaining to his previous medical history and family record and to his physical condition at and prior to the date of his application for the policy, which were fraudulently not full and fair, and effected concealments material to the risk, and the defendant relied upon them as made. The statements, representations, and answers were not incorporated in the policy. This defense could be established only by proof of them. Inasmuch as they could not be proven for the reasons already stated, the defense is not sufficient in law up-tain of such statements did not destroy their unThe instruction to the jury to disregard cerjust effect, and the rule that the withdrawal of [10] The defense designed "Fourth," that prejudicial matter or an instruction to the jury on the face of it. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. 720(9), 1186(4).] 5. CRIMINAL LAW COUNSEL-INSTRUCTIONS. 730(1)—ARGUMENTS OF For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to disregard it cures any error cannot be ap- It is the duty of a trial justice, to admonish counsel improperly conducting a trial, to restrain his acts and language within the very reasonable and liberal methods and rules fixed by law. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. 730(1).] Cardozo and Seabury, JJ., dissenting. dence in behalf of the defendant related to the conduct of the deceased through several months prior to March 10, 1915, and the relations between the defendant and the deceased existing prior to and at the time of the killing, and the mental condition of the defendant at that time. In rebuttal the writing in question was received in evidence, under the adequate objection and an exception to the ruling of the court by the defendant, as evidence bearing on the question of the sanity or insanity of the defendant at that time. It was in the Italian language and the translation of it read to the court was: "Louis from poison is about to dissolve me. My last wish is to recommend my children. You Appeal from Supreme Court, Trial Term, will be the father. I give them to you. Don't Erie County. Antonino Manganaro was convicted of murder in the first degree, and he appeals. Reversed. Horace O. Lanza, of Buffalo, for appellant. Wesley C. Dudley, Dist. Atty., of Buffalo (Guy B. Moore, of Buffalo, of counsel), for the People. COLLIN, J. The defendant was indicted and tried for the killing of his wife, and the jury found a verdict of murder in the first degree, as charged in the indictment. We are constrained by the reasons which this opinion will state to reverse the judgment of conviction. give any news to my family I beg you. Goodbye forever. Antonino Manganaro." Upon the envelope containing it was written in the English language: "This is last my will to Louise Mandarino, 25 Trenton Avenue, City." No evidence had been admitted or presented that the name at the end of the writing, or any part of the writing, was written by the defendant or by another at his direction or suggestion, or that he could write or read writing in any language. The confession of the defendant, which was detailed and circumstantial concerning his acts prior to, attendant upon, and subsequent to, the killing, did not mention the writing or suggest its existence. The justification for its reception On the 10th day of March, 1915, the de- in evidence, if it exists, must be found in cirfendant killed his wife, Josephine Mangana- cumstances and the writing itself. The eviro, at the city of Buffalo, by stabbing her with dence had disclosed to the court before it was a knife or dagger which had been formed received, through the cross-examination of a from a mechanic's file. The direct proof of police officer, a witness in behalf of the peothe killing was his statement, of such effect, ple, that it was found on "the dresser" in the contained in a confession made by him on the bedroom of the defendant and the deceased 11th day of March, which was received in between 10 and 11 o'clock in the forenoon of evidence and was not contradicted upon the Thursday, the day next after the homicide. trial. The defense was insanity, in the form It had further disclosed that on the Friday of melancholia with frenzy, and substantial last prior, the deceased, at the direction of evidence in support of it was received. The the defendant, had left the two rooms in trial justice by a charge, correct, impartial, which they and their three young children and satisfactory to the counsel for the par-lived. The deceased returned to them for ties, submitted to the jury the evidence relat- the first time thereafter in the evening of ing to the mental condition of the defendant the next Wednesday, a few hours before she at the time of the killing, and instructed them in the law involved in the entire evidence and case. was killed. The three children had been received by a charitable institution on the Tuesday just before. Subsequent to the reThe trial court erred, however, in receiv- moval of the children, and prior to the reing in evidence a certain writing which upon turn of the deceased with the defendant, he the trial was denominated the last will and was the only person living in the rooms. The testament of the defendant. The writing defendant and the deceased remained in the was offered by the counsel for the people, rooms until the killing, at about 9:30 o'clock and was received in rebuttal of the evidence in the evening. The defendant remained introduced in behalf of the defendant. The there with the body until about 7 o'clock direct evidence in behalf of the people, stat- in the next morning, when he locked the ed briefly and with sufficient accuracy and rooms and went to the hospital, on account comprehensiveness, related to the identity, of self-inflicted injuries. He within the three the condition of the body, and the cause of months last prior to the homicide had, on the death of the deceased, and the killing by two or more occasions, appealed to or conand deliberation and premeditation therein sulted Louis A. Mandarino, who was his on the part of the defendant. The direct evi- brother-in-law, concerning the acts and conFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |