142 N.Y.S. 352 | N.Y. Sup. Ct. | 1913
The plaintiff has entered into a contract with the defendant, whereby the defendant insured his automobile against loss by fire, theft or other causes. It is not disputed that this automobile was stolen, and the sole question of fact in the case is, whether the plaintiff previous to the theft had surrendered the policy for cancellation, and whether the policy was thereupon duly cancelled by the defendant.
The policy of insurance contains the usual clause providing that “ this policy may be cancelled at any time upon request of the insured, the company retaining or collecting the customary short rates for the time it has been in force, or it may be cancelled by the company by delivering or mailing to the insured at his last known address ten days’ written notice of such cancellation, and, if the premium has been paid, by tendering in cash, postal order or check the pro rata unearned premium thereon. ’ ’
It is undisputed that the defendant has neither given the ten days’ notice of cancellation nor tendered the pro rata unearned premium, but the defendant claims that the plaintiff has waived its requirements by an unconditional surrender.
To prove this defense, the defendant produced testimony to show that the plaintiff had made two previous claims under the policy of insurance; that, before it paid the second claim, one of the defendant’s employees telephoned to the plaintiff that the company would pay the claim only upon the surrender of the policy for cancellation; thereupon the plaintiff did bring in the policy for cancellation, and was informed that, after the pro rata unearned premium was calcu
So far as the findings of fact by the trial justice are concerned, I think there is evidence to sustain them, but I cannot agree that these facts determine the real issue in this case. The requirements of the policy as to the cancellation by the insurance company are inserted for the benefit of the assured, and may be waived by him. In the case of Buckley v. Citizens Insurance Co., 188 N. Y. 399, the insured had surrendered a policy of insurance containing a similar clause for cancellation. As in this case the company had failed to pay the unearned premium. The court then said: “ The one object of the cancellation clause is to place the policy in the custody of the insurance company absolutely and unconditionally. If the insured permits this to be done by his voluntary act, when the company gives notice of cancellation without receiving from it the unearned premium he assents to the cancellation, but can sue for the amount due him. ’ ’ '
The plaintiff seeks to distinguish this case on the ground that in that case there was a written notice of
The plaintiff also appeals from the judgment on the ground that the damages are the value placed by the parties upon the insured article. In view of the fact that the judgment is reversed, we need not decide this point, and I feel that it would be improper to express any opinion on this point, because plaintiff in his brief relies largely upon an alleged clause twenty-five, which I fail to find in the policy introduced by him in evidence.
Plaintiff’s appeal should, therefore, be dismissed without costs, and on the defendant’s appeal judgment should be reversed and a new trial ordered, with costs to defendant to abide the event.
Bijur and Whitaker, JJ., concur.
Plaintiff’s appeal dismissed and on defendant’s appeal judgment reversed and new trial ordered, with costs to defendant to abide event.