Neely v. Onondaga County Mutual Insurance — 7 Hill & Den. 49

Majority

p. 49

Neely vs. The Onondaga County Mutual Insurance Company.

Headnote

In an action on a policy issued by the Onondaga County Mutual Insurance Company, it appeared that the company, with full knowledge that the policy had become void by an alienation of the property insured, assessed the plaintiff’s premium note on account of losses which occurred after the alienation, and collected the assessment: Held, that this did not revive the policy, btit was consistent with the right of the company to treat it as void.

On demurrer, to replication. The plaintiff declared in assumpsit on a policy of insurance whereby the defendants insured the plaintiff’s dwelling house against loss or damage by fire, for the period of five years from the 12th of January, 1837, The declaration averred that the house was destroyed by fire on the 19th of August, 1841. Plea, that after the making of the policy, and before the fire, the interest of the plaintiff in the property-insured “was duly alienated and sold to Warren T, Worden, and thereupon the said policy became void,” &c.

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Replication, that after the alienation mentioned in the plea, and after the fire, “the said defendants, with full notice of the alienation, &c., made and collected of the said plaintiff an assessment upon the premium note given by the said plaintiff on the execution of the said policy, &c., and that the said assessment &c. was so made by the defendants and paid by the said plaintiff on account of losses which had happened &c. after the said alienationby means whereof the defendants had waived the forfeiture of the policy &c. The defendants demurred to the replication, and the plaintiff joined in demurrer.

Lawrence Sp Fellows, for the defendants.

Forbes Sp Sheldon, for the plaintiff.

By the Court,

The seventh section of the defendants’ charter is as follows : “ When any property insured with this corporation shall be alienated by sale or otherwise, the policy shall become void, -and be surrendered to the directors to be cancelled: and upon such surrender, the assured shall be entitled to receive his deposit note, upon the payment of his proportion of all losses and expenses that have accrued prior to such surrender,” &c. (Laws of 1836, p. 177; id. p. 44.) The alienation in the present Instance preceded the fire, and when that occurred the policy was a mere nullity.

It is said, however, that the facts set forth in the replication show a waiver of the forfeiture arising from the alienation, and that therefore the policy is still' binding on the defendants. These facts are, that the defendants, with full knowledge of the alienation, and of the destruction of the plaintiff’s dwelling house by fire, exacted and received payment of a part of his deposit note; for the purpose of meeting losses which occurred Subsequent to the alienation.

Whether a policy, after having become. void by the alienation of the property insured, can be restored to vitality by a mere act of waiver on the part of the underwriters, need not now' be decided; for in mf opinion the replication fails to show

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that any such act has been done by the defendants. Although the plaintiff’s policy became void by the alienation of the propperty insured, it does not follow that his deposit note was also void. On the contrary, until he surrendered his policy, and paid his proportion of all losses which accrued “ prior to such surrender,” the deposite note remained obligatory upon him. He does not pretend that he surrendered his policy previous- to the assessment mentioned in the replication; and he was therefore liable to pay his proportion of the losses for which that assessment was made. The replication shows that the defendants have enforced this liability; but their acts, instead of evincing an intention to affirm the existence of the policy, are perfectly consistent with their right to treat it as void.

The replication furnishes no answer to the matters stated in the plea, and the demurrer should therefore be sustained.

Judgment for the defendants.^[1]

(a) (a) See Smith v. The Saratoga County Mutual Fire Ins. Co., ( 3 Hill, 508 .)