| N.Y. Sup. Ct. | Jun 1, 1863
The defendants insist that the evidence offered by the plaintiff to obviate the objection to his right to recover on account of the existence of the other insurances not mentioned in or indorsed upon the policy, was improperly admitted; and particularly, that it was inadmissible in -view of the provisions in the policy that the company would not be bound by any statement not referred to or contained in the policy, and that no condition of the policy could be waived, except in writing signed by the secretary. The questions thus raised were discussed and decided when the case was before us on the former motion for a new-trial, (38 Barb. 402,) and I am unable to perceive that the facts bearing upon them are materially changed. It is true that the printed case now before us does not state, as did the case on which the first motion was argued, that the policy was renewed by the defendants; but it shows that it was done by their agent, and I do not understand that the defendants question his general authority to renew. Even if they took that position they could hardly maintain it, in the face of'the fact proved by themselves, that blank policies and renewal receipts, signed by their president and secretary, were furnished
In respect to the validity and effect of the assignment executed by the assured to the plaintiff, we held that as the assignment was executed after the loss, it carried in fact, not the policy, but the claim or debt which the assignors had against the defendants for the loss, and that it was not a breach of the condition in the policy which provided that the interest of the insured in the policy was not assignable unless by consent, &c. The defendants claim, however, that this branch of the case is controlled, not by the clause above referred to, which is within the body of the policy, but by one of the printed conditions annexed to it, which provides that policies subscribed by the defendants shall not be assigned “ either before or after a loss,” without consent, &c. If we assume that this latter condition controls, notwithstanding the express stipulation of the parties that the conditions annexed to the policy are not to be resorted to in cases otherwise specially provided for in the policy itself, (a point, however, which need not be passed upon in disposing of the case, and which I do not intend to decide,) yet the case is not substantially altered, since the condition referred to, by its terms, relates to transfers of policies only, and it contains no words which require or justify a construction applying it to transfers of claims for loss. As it embraces the case of a policy continuing in force after a partial loss, this interpretation of its .meaning gives effect to all its language. The condition in question, as well as that in the body of the policy before referred to, differs materially from the provisions of the policy in the case of Dey v. The Poughkeepsie Mut. Ins. Company,
The learned judge was correct in charging the jury that if notice was given to the agent either at the time of taking the renewal receipt, or the payment of the renewal premium, the plaintiff is entitled to recover; and in refusing to charge that if the jury should find that the notice, if any, was given after the renewal receipt was issued, although before the payment of the premium, still the policy was void. The insured, in paying the premium, dealt with the defendants through their agent, and not with the agent personally. He, being a general agent for effecting insurances on behalf of the company, had full power to insure, to renew, and to receive notice of other insurances, and for aught that appears, was authorized to receive the premium when he did; and his acceptance of it, with notice of the breach, was as effectual a waiver of the breach, as if the premium had been paid and he had accepted it with notice, at the time when the renewal receipt was issued.
I think there is nothing in the comment of the judge upon the testimony of the witness Burns calling for a new'trial.
■ If my brethren concur in these views, the motion for a new trial should be denied.
Ordered accordingly.
E. Darwm Smith, Johnson and J. C. Smith, Justices.]