25 N.Y.S. 301 | N.Y. Sup. Ct. | 1893
There is a distinction between a contract of insurance and a contract to insure. Union Mut. Ins. Ck>. v. Commercial Mut. Marine Ins. Co., 2 Curt. 524, affirmed 19 How. 318;. Insurance Co. v. Colt, 20 Wall. 560; Putnam v. Insurance Co., 123 Mass. 324. The complaint was evidently drafted with this difference in mind, and with the view of enabling the plaintiff to. recover on whichever kind of contract he should be able to establish. Was there a contract of insurance outstanding January 13, 1891, the date of the fire? The policy provides: “This policy may, by a renewal, be continued under the original stipulations in, consideration of premium for the renewed term.” The policy had: been once renewed for the year 1890 at the same rate of premium-, charged for the original policy, and the defendant understood from-the application filed that the plaintiff desired, not a new policy, but a renewal of the one outstanding for the year 1891. This-is apparent from defendant’s letter of January 7, 1891, in which it said, “Tour letter for renewal of insurance for E. M. Van Tassel,”' etc. The binding slip of January 1, 1891, continued the original policy for $10,000 in force, subject to "the original stipulation”' therein contained. It was provided in the policy that any renewal of it should be subject to its provisions, which is the legal