Citizens Cas. Co. Of N.Y. v. Zambrano Trucking Co. Inc., 233.

CourtUnited States State Supreme Court (New Jersey)
Citation57 A.2d 17
Docket NumberNo. 233.,233.
PartiesCITIZENS CASUALTY CO. OF NEW YORK v. ZAMBRANO TRUCKING CO., Inc., et al.
Decision Date29 January 1948

OPINION TEXT STARTS HERE

Appeal from Court of Chancery.

Suit by Citizens Casualty Company of New York, a corporation, against Zambrano Trucking Company, Inc., and another for cancellation of automobile liability policy. From a decree for complainant, 140 N.J.Eq. 378, 54 A.2d 721, defendants appeal.

Decree affirmed.

Louis Santorf, of Paterson, for defendants-appellants.

Furst & Furst, of Newark (David E. Feldman, of Newark, of counsel), for complainant-respondent.

BURLING, Justice.

This is an appeal from a decree of the Chancellor, entered upon the advice of Vice-Chancellor Stein who filed an opinion which is reported in 140 N.J.Eq. 378, 54 A.2d 721. As to the factual and legal questions presented for determination in the Court of Chancery we are in accord with the holdings of Vice-Chancellor Stein.

The following grounds of appeal were raised in the petition for appeal and the points were not dealt with in the opinion below and are hereby disposed of:

‘4. The defendants-appellants appeal from the said decree and every part thereof on the ground that the same is erroneous in that the Chancellor should have found that complainant was precluded from cancelling the policy in question as of May 18th, 1946, because complainant had already previously cancelled said policy as of September 26, 1945, and at the time of the attempted cancellation as of its original date, said policy was no longer in existence.

‘5. The defendants-appellants appeal from the said decree and every part thereof on the ground that the same is erroneous in that the Chancellor should have found that complainant waived any right to cancel the policy as of its original date for fraud or otherwise, having previously availed itself of its right to cancel said policy pro rata pursuant to paragraph No. 17 of the policy without reserving any rights to itself to cancel the policy upon any other ground subsequently discovered.’

The method of cancellation by the respondent by notice on September 26, 1945, to be effective for the remainder of the term of the insurance contract from October 1, 1945 to May 19, 1946, was in accordance with the provisions of the policy. Its motive at that time was because of a poor operating record of the appellant, particularly in an event on September 22, 1945. At this time it had no knowledge of the material representation...

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