Latest Important Cases Railway Passes. Condition Subsequent and Covenant to Keep it Running with the Land. N. Y. A contract which binds a railway and its assigns to furnish free transportation in return for a consideration is not a covenant running with the land which will bind assignees of the company, was the holding of the New York Court of Appeals in Munro v. Syracuse, Lake Shore and Northern Ky. C0., decided Dec. 13. 44 N. Y. Law Jour. 1299 (Dec. 29). Plaintiff's predecessors, as parties of the first part, made an indenture with the defendant's predecessor, a railroad company, party of the second part, whereby the former, in considera tion of one dollar and other covenants and condi tions, granted to the latter a strip of farm land for railroad purposes. One of the conditions was that the company should issue annually 3. pass
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The employee insured in the sum of $2,500 embezzled $2,680, and the American Surety Com pany paid $2,500 of the loss to the National Park Bank and then sued one of the Lloyd's under writers for his proportion of contribution, claim
ing that he should contribute (to the amount in which he was liable) in the proportion that $200,
000 bears to $2,500. The defendant admitted lia bility to contribute but denied that the measure of contribution was as stated by the plaintiffs, and alleged that the proper amount was a sum to be ascertained by calculating the proportion that $2,680 bears to $2,500. It was further con tended by the plaintiff that the law applicable in New York was the law to be applied in the present case. On this point the Judge ruled against the plaintifi‘, but decided to take the evidence of
over its road to the parties of the first part, and
experts, which the parties desired to adduoe,
it was recited that on failure to perform the con ditions all rights should revert to the parties of the first part, their successors and assigns, and that the agreement should be binding upon
in order to save a new trial in case an appeal were had and the appeal court found he was wrong. In his opinionI the learned Judge held, in short, that the duty of contribution did not depend on contract, but on principles of equity, and that the party required to do equity must
the heirs, successors and assigns of the parties
thereto. On the subsequent foreclosure of a mortgage upon all the property of the railroad company, to which action neither the plaintiffs nor their predecessors were parties, title passed to the defendant railroad company, and it re
fused to honor plaintiff's passes. In an action for specific performance and for damages it was held that the suit could be maintained; that the
provision with respect to passes amounted to a condition subsequent and a covenant to keep it running with the land. (The case is dis cussed editorially in44 N. Y. Law Jour. 1302, Dec. 29.) Suretieo. Double Insurance—Contribution— Law of the F0rum—The Law A pplicable-—Weight to be Attached by English Courts to American Deci tions. England. A novel point was decided by Mr. Justice Hamilton on Nov. 15, in the English High Court of Justice. The American Surety Company of New York had insured the National Park Bank against the defalcations of a certain employee to the extent of $2,500. Other employees of the bank, to the number of approximately one hun dred, were also covered by the same policy in varying amounts. The National Park Bank had further secured from certain English Lloyds Underwriters insurance to the amount of $200, (XlO, covering all its employees and various other risks as well, without specifically appor tioning the total amount among them.
be subject to the court dealing with the matter.
A number of American cases had, he said, been cited on either side, and he had considered their efl‘ect. American authorities were consulted in the English courts for edification, but with re gard to their weight it was worth recalling the remarks of Lord Justice James, that while cases in the United States Supreme Court were en titled to respect, cases in state courts were of comparatively little value. Analogies from ma rine or fire insurance did not carry the matter any further, and the result was that the case came before him as a case of first impression. The defendants never contemplated taking a $200,000 risk on each employee independently.
The principle put forward by the plaintiff for assessing the contribution must fail. He ac cepted the defendant's theory that the under writers should bear a proportion of the whole loss of $2,680 in the ratio of 2,680 to 2,500.
It is of interest to note that the plaintiff's expert in American law relied on a number of fire insurance cases of which Home Ins. Co. v. Baltimore Warehouse C0. (93 U. S. 527) is a type,
while the defendant's expert relied chiefly, in the absence of any direct authority upon the point in America, upon Burnett v. Millsaps (59 Miss. 333) and Cherry v. Wilson (78 N. C. 164) as
being the only cases decided in America where the
facts were in any way similar to those at issue in the case under review.
