91 N.Y.S. 393 | N.Y. App. Div. | 1904
The action is one brought to recover upon a standard fire insurance policy. The plaintiffs, in December, 1899, applied to one Peter Conroy, who was the general agent of the defendant and five other fire insurance companies, for insurance in the sum of $3,000 against damage by fire for the term of one year upon their stock of goods in store. Conroy, on the seventh of that month, issued and delivered to the plaintiffs two policies of insurance upon such goods for $1,500 each, one in the defendant company and one in the Teutonia Insurance Company. The policy issued in the defendant company contained the following provision: “ This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation.” The premiums on the policies were paid by the plaintiffs to Conroy, who was the agent for both companies. On January 6, 1900, Conroy was directed by the defendant to cancel its policy so delivered. No notice was served upon the plaintiffs, nor did they have any
Although the defendant on the 6th day of January, 1900, notified its agent to cancel the policy issued by it, neither the defendant nor Conroy gave any notice to the plaintiffs of their intention to cancel the policy until twelve days thereafter, and one day after the property insured had been destroyed by fire. There was no compliance by the defendant with the provision of the policy requiring five days’ notice of a cancellation by it to be given, and until the giving of such notice the policy was not, by its terms, cancelable by the defendant. The facts testified to by Conroy, that on the day before the fire he marked the Fidelity Company policy canceled upon his books and credited the premium on his books to the Palatine Company, was not effective, in the absence of the notice required in the
Nor to my mind does the fact that one of the plaintiffs, before a cancellation and after the liability of the defendant had become fixed by the fire, received from Conroy a policy in the new company and handed back to him the policy issued by the defendant, stand in the way of plaintiffs’ recovery here. He was assured by the agent at that time that the new company was liable and that he was protected by the change. When it turned out that the new company repudiated its liability and that the plaintiffs were not protected by such a change his permitting the substitution of one policy for another was not effective, in my opinion, to cancel the liability of the defendant that had become fixed before the change was made. The obligation of the defendant to pay the loss could not be dischai’ged in that way.
The appellant cites Jackson v. Fire Association of Philadelphia (13 N. Y. St. Repr. 257) as an authority for its contention that the defendant is not liable, but that case rests upon the proven authority of the agent of the insurance company there to represent the insured in canceling one policy and issuing another, while here the testimony shows the agent was entirely without authority to represent the insured in canceling the old policy and issuing the new one.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.