5 Wend. 200 | N.Y. Sup. Ct. | 1830
1. It is objected that the counts d° not specify the nature or extent of the plaintiff’s interest. In 2 Marshall, 682, it is said : “ The averment of interest in the insured may be either general or special: under a general averment of interest, the plaintiff may give in evidence any interest he may have in the thing insured; but if the interest be averred specially, it must be. proved as stated. The general averment is therefore in most cases to be preferred.” The counts in this case are in the usual form, that the plaintiff was interested in the subject matter insured to the amount insured; and was there no objection to the maintenance of the action by the plaintiff in his character of assignee, this point would be no bar to a recovery.
2. The want of notice of the plaintiff’s interest is relied on. Notice is averred in both counts; in the first, it appears by the written consent of the defendants; and it seems to me the defendants are estopped from saying they had no notice of the assignment from Van Velzer to Granger, when they have given a written consent to such assignment upon the back of the policy.
3. It is also objected that the time and manner of the conveyance should be stated. This seems to be already answered by the quotation from Marshall, from which it appears a general averment of interest is sufficient.
4. It is further objected that a sufficient consideration is not set forth for the promise of the defendants to the plaintiff. The consideration stated is the premium paid by Van Velzer, and the subsequent transfer by the defendants’ consent of Van Velzer’s interest to the plaintiff; this is enough.
5. The important question intended to be presented is whether an action can be sustained in the name of the assignee. At common law, this could not be done in a court of law, though it might in equity. 2 Marshall, 800. But there the suit would not be entertained unless it appeared that the assured refused the use of his name for the benefit of the assignee. In Carter v. United Ins. Co. 1 Johns. Ch, R. 463, the chancellor refused to entertain jurisdiction, saying the remedy was at law, and the nominal plaintiff would not be permitted to defeat the action. The statute incorporating
This statute gives an action in the name of the assignee of the policy, provided he has become the purchaser or assignee of the subject insured subsequent to the insurance and before the loss. This being the foundation of the plaintiff’s right of action, he is bound to shew that he comes within the provisions of the act. It is not any interest in the subject insured which authorizes the assignment of the policy and the right of action j the plaintiff must have the whole interest insured.
In the case in 4 Cowen, IS, the plaintiff did not merely state that he was interested in the bond, but also that he was the owner thereof. The case of Fenner v. Mears, 2 W. Bl. 1269,.upon the authority of which that decision was made, has been doubted, 1 East, 104. Besides, that was not an action on the bond itself; this is an action upon the policy. A policy of insurance is not assignable. The policies of the defendants may be assigned, and an action sustained upon them in the name of the assignee; but to give the assignee such right to prosecute in his own name, the provisions of the statute must be complied with. The plaintiff in his declaration has failed to shew that he is either purchaser or assignee of the subject insured, and therefore cannot sustain the action in his own name.
The defendants are entitled to judgment on the demurrers, with leave to the plaintiff to amend on payment of costs.