133 Misc. 193 | N.Y. Sup. Ct. | 1928
Motion by plaintiff to strike out defendant’s first and second defenses on the ground of insufficiency. The action is on a policy of marine insurance issued by the defendant, which insured L. R. Connett & Co., Inc., for account of whom it may concern, covering the scow Dudley for a term beginning August 5, 1927, and ending August 5, 1928. By the printed form the policy provides: “ By this policy of insurance do make insurance and cause L. R. Connett & Co., Inc., on account of assured, loss if any payable to assured or order.”
The policy was dated July 16, 1927, and on the same day a typewritten rider was annexed to the face of the policy, which states the assured as “ L. R. Connett & Co., Inc., for account of whom it may concern.” In the printed form of the policy is a provision which expressly forbade any transfer of the interest of the assured unless consented to by the company in writing, and also expressly provided that any change in the nature of the insurable interest of the insured in the property without such consent would void the policy thenceforth. The clause in question is as follows: “ The interest of the assured in this policy or any part thereof or in the property insured or any part thereof is not assignable unless by the consent of this company manifested in writing and in case of transfer or termination of any such interest of the assured or any change in the nature of the insurable interest of the insured in the property aforesaid, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect "
Plaintiff claims this defense is insufficient for two reasons: First, that the agreement on the part of the L. R. Connett & Co., Inc., for the sale of this vessel did not change Connett’s insurable interest, that is to say, the title, which remained intact until after the damage; and, second, that the clause was in effect ehminated and written out of the policy by the terms of the typewritten rider, which provided: “ L. R. Connett & Co., Inc., for account of whom it may concern. * * * The terms and conditions of this form are to be regarded as substituted for those of the policy form to which it is attached in so far as they may conflict.”
It is an established rule that contracts of marine insurance are to be liberally construed in favor of the insured. (Duncan v. China Mut. Ins. Co., 129 N. Y. 237.) It is my opinion that the very purpose of stating in the typewritten rider that the insurance was for account of whom it may concern was to do away with the printed provision in the policy form in regard to the prohibition against change of interest. The technical phrase “ for whom it may concern,” or any other term of equivalent designation or import in a marine insurance policy, consists of general words and embraces the
The language of the rider, in my opinion, clearly expresses an intention upon the part of the insured that he intended that all the title and interest in the scow should be protected by this insurance in the hands of any person to whom the assured might transfer the same or any portion thereof during the current term of the policy. Had the intention of the assured been only to protect his own interests, the policy naturally would have been taken out in his own name, omitting the qualifying phrase “ for.account of whom it may concern.” The typewritten rider is clearly inconsistent with the printed condition in the policy form itself as to change of interest and I hold that the typewritten rider displaced, and nullified the change of interest clause in the printed policy form. I consider that the first defense is insufficient and should be stricken out.
The defendant’s second defense, after repeating the allegations of various paragraphs of the first defense, alleges that the contract of marine insurance here involved was a contract to indemnify the assured against losses actually sustained by the insured, and then alleges, on information and belief, that L. R. Connett & Co., Inc., sustained and suffered no losses whatsoever by reason of the disaster to the scow Dudley, as alleged in the complaint, for the reason that after the disaster the Gildersleeve Shipbuilding Corporation completed its contract to purchase, accepted a bill of sale of the scow
Motion to strike out the first and second defenses is granted, with ten dollars costs, with leave to the defendant, if so advised, to serve an amended answer within twenty days after service of order, with notice of entry upon payment of said motion costs. Order signed.