50 N.Y. 402 | NY | 1872
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *404
Whatever doubts may formerly have been entertained as to the validity of parol contracts of insurance, made by insurance corporations, authorized by their charters to make insurance by issuing policies, it is now settled that they are valid. (Commercial Marine Insurance Company v. The Union InsuranceCompany, 19 How., U.S., 321; Trustees, etc., v. Brooklyn FireInsurance Company,
The remaining question arises upon the exception taken to the direction of the judge as to the amount of the verdict directed for the plaintiff. This was that contained in the proofs of loss. This was not competent evidence against the defendant upon that point; nor was the report of the loss made to the company by McCoy competent as to this against either party. But the evidence showed the number of bales (112), the weight of each bale; the lowest price per pound fixed by any witness speaking upon that subject was thirty-seven cents. The witness Preston gives the only testimony showing the extent of the loss. He says that some four or five hundred bales were damaged or consumed by the fire; that the plaintiff was the consignor of 112 bales, giving marks; that he did not know the relative quantities damaged or consumed; that the *410 112 bales of the plaintiff were damaged or consumed. Other evidence was given showing the value of the damaged cotton, which, deducted from the value of the 112 bales, and apportioning the loss between the insurers according to their respective amounts, would have entitled the plaintiff to recover against the defendant a sum larger than that stated in the proofs of loss. The defendant was not, therefore, injured by the judge's adopting that sum, as there was no evidence that would have justified a verdict for a less amount.
The judgment appealed from must be affirmed, with costs.
CHURCH, Ch. J., PECKHAM and FOLGER, JJ., concur.
RAPALLO, ALLEN and ANDREWS, JJ., dissent.
Judgment affirmed.