Pitt v. Phenix Insurance

10 Daly 281 | New York Court of Common Pleas | 1881

J. F. Daly, J.

The plaintiff sues upon the policy issued to Thomas Pitt on January 25th, 1877, and upon the certificate issued to herself on February 21st, 1877, as constituting her contract with defendant to insure the tug “ Gorinne.” Whatever may be the validity of the original policy to Thomas Pitt above mentioned (he not being owner and not having an insurable interest), the conditions of that policy were accepted by her as the basis of her insurance, according to the tenor of the certificate. The term “ conditions ” used in such certificate is equivalent to “ provisions,” there being in the original policy no special conditions to which the new contract might be construed to refer. The original policy provided for the insurance of the tug from January 25th, 1877, to February 25th, 1877, with the privilege of making one trip from New York to Norfolk. The certificate insured Mrs. Pitt “at and from Norfolk to New York.” The effect was the same as if the original policy had included this return trip, and as the time was limited to February 25th, 1877, the insurance would expire on that day notwithstanding the return voyage had not been accomplished. In a time policy, the risk insured is independent of the voyage; and in a policy which partakes of the nature both of a time policy and a voyage policy, the underwriter is not liable for a loss unless it occur within the time specified (Arnould Marine Ins., 4th ed. 349-353).

The appellant contends that the contract with Mrs. Pitt was a voyage policy; but this is argued on the theory that the time limit in Mr. Pitt’s policy is to be ignored. Not being inconsistent with any provision of the new contract, it cannot be deemed to be abrogated, but must stand with the other conditions preserved and continued by the terms of the certificate issued to plaintiff.

Judgment should be affirmed, with costs.

Vast Hoesen, J., concurred.

Judgment affirmed, with costs.