Stuart v. Columbian Fire Insurance

1 Daly 471 | New York Court of Common Pleas | 1865

By the Court.

J.—The

The insurance effected by Garvin, Bell & Co., in Louisville, was not prior to the date of the policy in suit; and the clause in question in terms, certainly, only refers to insurance “ prior in date to this policy.”

The defence is technical, and shottld not be favored, but should be strictly construed s the clause respecting prior insuranee being inserted for the benefit of the defendants, who, had they intended to make this policy, so far as the cotton in question was concerned, bear date November 3, instead of, as the language implies, its actual date, October 18th, could have rendered the matter clear by proper stipulations. The insurance effected by Messrs. Garvin, Bell & Co., in the Franklin Insurance Company was on the 29th of October, 1862, while the policy in part bears date, eleven days earlier, on the 18th of October, 1862. The memorandum made on the 3d of November, incorporated nothing into the policy, except the additional risk which the assurers assumed. They did not make a new policy, but agreed that the then existing policy, dated October 18th, 1861, should cover the cotton in question.

It was simply an agreement made on the 3d of November, 1862, that a contract dated October IS, 1862, should be extended as to its subject matter, so as to apply to and cover other property than that which had originally been mentioned in it.

The policy held by the plaintiffs, not being prior to the insurance made in Louisville, covered the interest of the Messrs. Stuart, without it being specified, and whether that interest was as owners or as consignees.

I think the referee erred in dismissing the complaint, and that the judgment should be* reversed and a new trial ordered; costs to abide the event.