74 N.Y.S. 1038 | N.Y. App. Div. | 1902
On the 1st of September, 1897, the plaintiff entered into a contrast by which it insured, to the extent of $60,000, the Santa’ Fe and Pacific Railroad Company against loss or damage by fire for a specified term upon certain property contained in or on cars awaiting movement while in transit and until unloaded at destination. Subsequently it applied to and obtained from the defendant a contract of reinsurance to the extent of $5,000 against a portion of the risk. The contract of reinsurance provided that it was “ subject to the
At the close of the trial the court directed a, verdict for the plaintiff for the amount claimed, and from the judgment thereafter entered the defendant appealed.
During the course of the trial upwards of one hundred exceptions were taken, and we are asked to hold that “ every exception * * * was well taken.” We are unable to see any merit whatever in any of the exceptions.. Indeed none, of them are deserving of consideration, except those relating to the evidence as to the adjustment of the loss and payment of the same by the plaintiff to the railroad company. What is claimed in this respect is that the defendant is. not bound by the adjustment made by the plaintiff, but that in order to entitle the plaintiff to recover against this defendant it was required to prove every fact which the railroad would have been required to prove had the plaintiff resisted its claim and an action been brought to recover under the original policy. We think that a proper construction of the contract of reinsurance fails to sustain this claim. The defendant agreed that the reinsurance should be subject to the same risks, valuations and conditions as the original insurance, and that the loss should “ be settled and paid pro rata with the reinsured and at the same time and place and upon the same conditions.” Not only this, but it will be observed that the defendant admitted upon the trial that under a policy of this kind it is customary for the reinsurer to pay the reinsured its proportion of the adjustment expenses. In the absence, therefore,
It follows that the judgment and order appealed from must be . affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.