26 A.D. 91 | N.Y. App. Div. | 1898
This case was brought on for trial at a Trial Term of the court, a jury" having been waived, upon a stipulation as to the facts, and judgment was directed for. the defendant. The parties agree that the only question at issue is the construction of the provision in the policy relating to a cancellation thereof, and state the question to be as follows: “ The plaintiffs claim that said policy was not canceled by the defendant by the -service of said notice on the plaintiffs, for the reason that same was not accompanied by payment or tender to the -plaintiffs of the unearned premium thereof. The defendant claims that said policy was legally canceled by said notice without payment or tender of said unearned premium, and that it was the duty of the plaintiffs after receiving said notice to surrender or offer to surrender said policy to the defendant, and demand payment of said unearned premium, if the plaintiffs desired to obtain the same.” The provision in the policy referred to provides that the .policy' shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of -such cancellation. “ If this policy shall be canceled as hereinbefore pro
No demand was made upon the insurance company for this premium, nor was the policy or last renewal ever surrendered, nor did the company make any further tender of the unearned premium mentioned in this letter. No point is made by the appellants of the sufficiency of this notice to cancel the policy, or of the sufficiency of' this letter as a notice that the defendant intended to ■ exercise its option that the policy should be canceled. The only claim made is-that an actual or a formal tender of the unearned premium was-essential to the cancellation of the policy by the company. The-clause in the policy provides that it may be canceled at any time by the company by giving five days’ notice of such cancellation.
This notice by the company,to- the plaintiffs did give five days’’ notice of the cancellation, and, under the provisions of the policy*, by such notice the policy was canceled. The further provision, that the unearned portion of the premium, should be returned on .surrender of the policy or last renewal, did not require the repayment of the unearned premium as a condition precedent to the cancella
The case of Walthear v. Pennsylvania Fire Ins. Co. (2 App. Div. 330) is in point, and the reason given by.the court in that case to show that the case of Nitch v. Am. Cent. Ins. Co. (83 Hun, 614; affd. by the Court of Appeals, 152 N. Y. 635) is distinguishable applies as well td this case as to the Walthear case. In the latter ■case the court say: “ The distinction, therefore, between this and the Nitsch case will be found in the fact, which we have adverted to, that there was in that case no return or. offer to return the premium, while in this case there was a distinct offer.” In the case at bar it will be noticed that there was a distinct offer to repay the pro rata unearned premium upon demand and surrender of the policy, and this case is, therefore, brought directly within the decision of the Walthear case.
■- We 'think that the judgment was right, and it is affirmed, with •costs.- .
Van Brunt, P. J., Barrett, Patterson and' McLaughlin, JJ., ■concurred.
Judgment affirmed, with costs.