3 Cai. Cas. 190 | N.Y. Sup. Ct. | 1805
Per curiam, delivered by
Upon the first and most material question in this case, very little information can be found in the English books, as re-assurances are rendered unlawful in most cases, by the statute of the 19 G. 2. But re-assurances are valid and usual contracts in France, and from the general principles applied to them by the French writers, it appears that the contract of re-assurance is totally distinct from, and unconnected with, the primitive insurance, and that the re-assurer has nothing to contest or settle with the primitive assured. The insurer therefore, who makes re-assurance for his own indemnity, is obliged to prove the loading and value of the goods in the same manner as if he was the original insured. It is however, usual for the policy of re-assurance, to contain an express provision, that the re-assured shall only be obliged to produce the evidence of payment of the loss, and the re-as-surer will be bound to refund it. This special contract obliges the re-assured to act with good faith, but leaves him in all other respects to his own discretion and prudence, in admitting or contesting the claim of the first insured. Pothier, n. 153. 1 Emer. 247, 8. 250, 2. 336 to 340. But when no such special contract is made, and none was made in the present case, the re-assurer will be obliged to pay, all that the first insurer ought himself to pay ; and this will impose upon the first insurer the burthen of proving the existence and extent of the loss. When he has done that, he has done ail that v/as requisite to entitle him to his indemnity. The notion that he must give notice, or abandon to the re-insurer, as soon as the first insured has abandoned to him, does not appear to be well founded. There is no such ruh;
The next question is, whether the defendants are bound to pay the costs that the plaintiffs were put to, in defending the suit brought against them by Warren f I am of opinion that they are. On the day that the suit was brought against the plaintiffs, they gave notice of it to the defendants, and the latter might have come forward, and prevented the suit, by payment of the sum demanded. As the plaintiffs were bound to know at their peril, that the claim against them was valid, and gave notice to the defendants as soon as the legal demand was made, they were justified in submitting the claim to the decision of a court of justice, and the costs which necessarily arose in that suit, might be considered as incurred upon reasonable grounds, and for the greater caution and safety. From the cases of Goddard v. Vanderheyden, 2 Black. Rep. 794, and Mayor v. Steward, 4 Burr. 2439, it would seem that such charges are allowed, as composing part of a claim for indemnity % and as interest upon all sums advanced, follows of course, I am of opinion the verdict as taken, ought to stand.
This is a case of re-assurance. These contracts being prohibited in England., unless where the first insurer becomes insolvent or dies, we cannot thence expect any aid, in construing policies of this kind. A recovery is here resisted, because no abandonment was made-