233 A.D. 369 | N.Y. App. Div. | 1931
The sole issue tendered by the pleadings, litigated by the parties and submitted to the jury, was whether the plaintiff had received sufficient notice of cancellation of the policy. Under its terms either party might cancel at any time without cause. The defendant, therefore, was not required to assign non-payment of premium as the ground for cancellation, or any other reason. The obligation of the defendant upon giving such notice of cancellation to return the pro rata unearned premium, or make tender thereof, is raised for the first time on this appeal. It was not submitted to the jury, nor was any request for such submission made, nor any motions made by the plaintiff based on such contention. It is too late to raise it now.
Furthermore, under the peculiar circumstances of this case we are of opinion that return of such pro rata unearned premium to the brokers was a sufficient compliance with any such obligation.
The refusal of the court to charge that “ if they find the plaintiff did not receive the cancellation notice, the plaintiff is entitled to a verdict ” was justified for the reason that the main charge fairly and fully covered the issue raised by such request.
It follows that the judgment and order should be affirmed, with costs.
Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.
Judgment and order affirmed, with costs.