55 How. Pr. 318 | N.Y. Sup. Ct. | 1876
The demurrer to the reply in this cause presents, substantially (and the defendant has only argued) two questions:
First. Conceding that the policy of insurance is issued to Jane A. Lasher, as the owner of certain personal property, the language used therein importing that there was a warranty by her that she was the owner thereof in fact at the time of such insurance, and further, conceding that she really was only the possessor of such property under a contract of purchase upon which she had made payments -to a considerable amount, can she recover, provided the defendant was truly apprised by her, at the time of the application for the policy, of her interest in the insured property, and the
Second. When a policy of insurance contains a clause to the effect, “ If differences of opinion should arise between the parties hereto, as to the a/tnomit of loss or damage upon property partially damaged, the subject shall be referred to two disinterested and competent men, each party to select one (and in case of disagreement they to select a third), who shall, under oath, ascertain, estimate and appraise such partial loss, or damage, upon each article separately, and their award in writing shall be binding on the parties hereto, each party paying one-half the expense of reference; ” can the insured recover, when there is no dispute as to the amount of loss or damage,” and the only question is as to the validity of the policy, without an offer to refer ?
Time will not allow me to prepare an elaborate opinion upon the questions submitted, nor .is it necessary, as they seem to me to depend upon simple principles. Regarding them in the order stated, upon the first point, we observe :
The insured is oftentimes ignorant of the mode and manner of effecting an insurance. Technical terms and phrases are
The case of Kennedy agt. St. Lawrence County Mutual
Judgment is rendered for the plaintiffs upon the demurrer, and the form of the order will be settled on notice.