4 N.Y. 79 | NY | 1856
The policy in suit contains a warranty not to insure for more than $11,000, and to this is annexed
The policy in suit is therefore void in consequence of the subsequent insurance, if the interest and risk in both are the same. That the risk is the same is not questioned. In respect to the interest, the two subsequent policies are issued to the plaintiff and his associate Reid, by name, but not for the account of any one else. Their interest alone was therefore insured. Mr. Phillips, upon the authorities which he cites, states the rule to be, that if a policy does not contain the general clause (‘ for account of the owners,’ or ‘ for whom it may concern,’ or ‘as interest may appear’), no others than those named as insured, or on whose account it is expressed to be made, can avail themselves of it.” (1 Phillips on Ins., 160, 2d ed.) In such a case it was held in Dumas v. Jones (4 Mass., 647) that the insured could recover upon his own interest only, and not upon that of his associate owner. The result is that the subsequent policies cover the interests of only two of the associates, while the one in question covers that of all three.
In this view it is claimed that the subsequent policies are upon a different interest and therefore not a violation of the warrantee and condition of the one in question. I cannot, however, come to that.conclusion. The subsequent policies are upon the same interest as the prior one, although not
The judgment should be affirmed.
Upon the policies issued by the Mutual Insurance Company of Buffalo and the Merchants" Mutual Insurance Company of Milwaukee, on “ account of Henry E. Mussey and Conrad Reid,” the interests which they had in the vessel insured were covered. Whether any other person had also an interest in the vessel, either jointly with them or otherwise, which might also have been the subject of insurance, was immaterial, except in its bearing upon the amount which they could recover. It in no way affected their right to insure to the extent of their interest, (Pacific Ins. Co. v. Catlett, 4 Wend., 75.) The policy in
The policy in suit, which is also .earliest in date, contains a warranty not to insure over $11,000, and provides that in case of any excess over $11,000, the policy shall be void. The question is, whether that warranty has been broken. The subsequent policies, by which, as the defendants contend, the policy in suit became void, contain the clauses usual in American policies, that in case of prior insurance the insurers shall be answerable only for so much as the prior insurance may be deficient towards fully covering the premises insured; and that in case of subsequent insurance, they shall be answerable to the full amount, without right to claim contribution from such subsequent insurers. They also contain the following clause, upon the construction of which the rights of the parties are materially dependent: “ It is hereby agreed that this policy shall become void if any other insurance be made upon the vessel hereby assured, which together with this insurance shall exceed the sum of $10,000.” On behalf of the plaintiff it is contended that
The judgment should be affirmed
Hubbard, J., dissented. Selden, J., took no part in the decision.
Judgment affirmed.