
    PHENIX INSURANCE COMPANY, Respondent v. WILLIAM H. PARSONS, Survivor, Etc., Appellant.
    
      Marine insurance, recovery under policies issued therefor.
    
    This is the second time this case has been before the-general term of this court, and the issues in the action have been fully considered and passed upon, and heretofore reported in 56 Super. Gt. 123, exceptingas follows:
    The learned counsel for appellant argued that there were in the present case differences from the former one which call for another result. On the former trial it did not appear as now, that the policy, on which the insurance for advances was made, called the cargo policy, was accompanied by a policy called “ the freight policy.” This freight policy does not contain the following special claim set forth in the cargo policy, as follows: “ Itis understood that freight and advances insured under this policy are subject to the terms and conditions of ‘ freight policy’ attached hereto.” Held, that this fact does not imply the conclusion that insurances of advances are not subject to the terms of the cargo policy, which insures the advances, and the implied right of the plaintiff to be subrogated to the defendant’s claim against the owner for the reimbursement of advances, secures the same result in this case as was reached in the former, in the consideration of the special clause in the cargo policy
    On the trial the counsel for defendant objected to certain commissions on charter and expense of insuring advances being included in the recovery as a part of defendant’s cl aim against the owner, on the ground that they were not a part of the advances which were insured. Held, that the objection was correctly overruled, for by the assignment of the claim to the plaintiff, there was an implied warranty that the claims amounted to $1,500, which, in fact, comprised the commissions and the expenses of insurance.
    Against the objection of defendant the court below allowed a recovery of certain expenses incurred by the plaintiff in connection with a litigation for the recovery against the owners of the claims for advances. Held, that the plaintiff was not entitled to recover for services of counsel in that litigation the charge of $250. That the costs of the action, amounting to the sum of $36.65, were rightfully included in the recovery, but there was not sufficient proof to justify the recovery of $8.51 for type-writing and copies of brief.
    Judgment affirmed without costs to either party when modified by the deductions named.
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided March 2, 1891.
    Appeal from a judgment entered upon a verdict rendered, by the direction of the court, in favor of the plaintiff.
    
      Goodrich, Deady & Goodrich, attorneys, and W. W. Goodrich of counsel, for appellant.
    
      George A. Black, attorney and of counsel, for respondent.
   Per Curiam.

issues in this action have been passed upon heretofore as reported in 56 Super. Ct. 423.

The learned counsel for appellant argues that there are in the present case differences from the former case which call for another result. He adverts to the fact that on the former trial it did not appear, as it does now, that the policy on which the insurance for advances was made, called the cargo policy, was accompanied by a policy called the freight policy. The freight policy does not contain a special clause upon which, the counsel argues, the former decision is based, and the cargo policy contained the following clause: “ It is understood that freight and advances insured under this policy are subject to the terms and conditions of freight policy attached hereto.” This does not imply that insurance of advances are not subject to the terms of the cargo policy which insures the advances. And the implied right of the plaintiff to be subrogated to the defendant’s claim against the owners for the re-imbursement of advances, would secure the same result in this action as has been placed before upon the special clause.

On. the trial the counsel for defendant objected to there being included in the recovery as being part of defendant’s claim against the owner, and yet not being advances, which was the thing insured, certain commissions on charter and expense of insuring advances. The objection was correctly overruled, for, by the assignment of the claims to the plaintiff, there was an implied warranty that the claims amounted to $1,500, which, in fact, comprised the commissions and expense of insurance.

Against the objection of defendant the court allowed a recovery for the amount of certain expenses incurred by plaintiff in connection with a litigation for the recovery .against the owners of the claims for advances. The matter involved was not much discussed on the argument of the appeal.

The plaintiff was not entitled to recover for services of counsel the charge of $250. Sedgwick on Dam. [292] note 2.

The costs of the action were rightly recovered. Although the defendant did not have notice of the action, the costs were an actual and definite expense to which the plaintiffs were subjected, by acting upon the defendant’s warranty. Armstrong v. Percy, 5 Wend. 535. These costs amounted to $36.65. There was not sufficient proof to justify the recovery of $8.51 for type-writing and copies of brief.

The judgment should be modified by deducting the amounts that have been specified, and, as modified, affirmed, without costs to either party.  