126 N.Y.S. 271 | N.Y. App. Div. | 1910
Lead Opinion
This is an action upon what is described as a credit indemnity bond, being in effect a policy of insurance against losses in business resulting from bad debts. The contract between the parties is evidenced by a number of papers, including the application, the bond and several riders or schedules. It would seem that the terms of the contract must have been the result of negotiations, for what appears to be the regular printed forms ordinarily used by defendant are much interlined and otherwise modified by the attached riders, so that the precise contract is to be ascertained only by careful reading. The application signed by the plaintiffs is for a credit indemnity bond to commence oil the 1st day of January, 1903, and to terminate at the end of one year therefrom. It provided for what is called an initial loss to be borne by the insured before any liability should attach to the insurer in the following terms: “ When the losses covered under the terms and conditions of said bond shall exceed $5,000 on
The bond itself is stated to be made in consideration of the application and of the payment of the premium, and by its terms the defendant agrees to indemnify plaintiffs to an amount not exceeding $20,000, “ subject to the following limitations, agreements and conditions.” The term of the bond and the amount of the initial loss to be borne in the "first instance by defendants follow the terms of the application. The indemnity is said to be made subject to two provisos designated “ a ” and “ b.” The proviso designated “ b ” has to do with what shall be deemed evidence of insolvency and. /was superseded by the “ Schedule. A ” above referred to, arid is not important upon this appeal. The proviso designated “a” réads as follows: “ That such losses shall have been sustained on claims ■ against debtors covered by Schedule A, attached hereto signed-by - the Company and which is made a part hereof.” Then follows a
There is still another reason why the plaintiffs may not recover' for their loss by the failure of the Consumers Coffee Company. As has been-said, more than $11,000 of this indebtedness was incurred after September 1, 1902,- and before January 1, 1903.
The plaintiffs’ appeal calls in question the disallowance by the referee of certain claims, based upon losses arising from the insol vency of James P. Bennett, Edward G-. Byrnes'and Samuel Wilde’s Sons. The reason for rejecting these claims was that to'none of the preliminary notices of loss by these debtors was there attached any copy of the account of the plaintiffs showing their prior experience with the debtor. In thus rejecting these claims the referee kept
The judgment will accordingly be modified by deducting therefrom the sum allowed on account of the loss by reason of the Consumers Coffee Company’s insolvency, being $3,664.55, with interest from February 19, 1904. The extra allowance must also be stricken out, as there is no longer a basis for estimating it. As so modified the judgment will be affirmed, with costs to the defendant appellant.
McLaughlin, Clabke and Dowling, JJ., concurred; Ingeaham, P. J., dissented in part.
Dissenting Opinion
(dissenting):
I do not agree with Mr. Justice Scott in his construction of this policy concerning the los's to the Consumers Coffee Company. It seems to me that what the parties intended was that the plaintiffs
I, therefore, dissent from the modification; but- as to the other questions discussed by Mr. Justice Scott, I concur with him.
Extra allowance stricken out and judgment- modified as directed in opinion and as modified affirmed, with costs to defendant. Settle order on notice.