100 N.Y. 417 | NY | 1885
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *419
It may be conceded that the defendants notified the insured before the fire, of a desire to cancel the policy, but there is no evidence that any portion of the unearned premium was paid back; on the contrary, they only proposed to do this after the policy should be returned by the insured. They had no right to impose that condition, nor could they require the insured to take any step in the matter. The option to cancel was reserved, but to be exercised by "notice, and refunding a ratable proportion of the premium for the unexpired time" of the policy. What the defendants did was to ask the insured to return the policy for cancellation, promising in that case "to remit to them the return premium." This was not enough. Notice of cancellation and actual payment or tender of the sum due could alone suffice. (VanValkenburgh *421
v. Lenox Fire Ins. Co.,
The other point made for the appellant rests upon the claim against "assignment" of the policy. It entails a forfeiture, and must, therefore, receive a strict construction. Hence no other meaning can be given to the language used, than a most rigid and literal interpretation permits, and as the condition is a limitation of liability, it cannot be extended by interpretation so as to include a case not clearly within the words. (Rann v.Home Ins. Co.,
But if we take the prohibition as applying to the policy disconnected from the property, it will not work the result claimed by the appellant. An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one whole interest in an estate, or chattel, or other thing. In that sense the policy in question has not been "assigned." It with others was delivered to the creditor upon an agreement that the policies should stand as collateral security for certain claims held by it against the insured, and in case of loss to the property insured, they should "be payable" to the bank, as its "claim against the insured should appear." The assured did not part with the title. The transfer was not unconditional. They retained not only the whole insured property, but an interest in the policy. In any proceeding for its enforcement they would have been a necessary party (Simson v.Satterlee,
In Conover's Case (supra) the charter of defendant provided that whenever the insured property "shall be alienated by sale or otherwise, the policy shall thereupon be void," and it was held that the words did not embrace a mortgage, since it creates but a lien or security, and does not transfer the title; and inShearman's Case (supra) the same rule was held to apply to a clause forbidding a transfer of the policy. To take away the cause of action in one case, and to render void the policy in the other, equally requires a transfer or alienation of the entire insurable interest.
It seems indeed to be well settled that so long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to that extent.
The cases relied upon by the appellant do not seem inconsistent with this conclusion. In Smith v. Saratoga Co. Mut. F. Ins.Co. (1 Hill, 497), there was not only an express and literal assignment of the policy, but of "all rights and claims which might arise thereon." Savage v. Howard Ins. Co. (
The judgment appealed from should be affirmed.
All concur, except EARL, J., dissenting.
Judgment affirmed.