Griffey v. New York Cent. Ins. Co.
| Decision Date | 24 November 1885 |
| Citation | 100 N.Y. 417,3 N.E. 309 |
| Parties | GRIFFEY and another v. NEW YORK CENT. INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
On the eighteenth day of December, 1878, the plaintiffs were insured by the defendant against loss by fire on certain described property. They also held policies of like character, issued by other companies, to the amount, including the one in question, of $16,000. On the twenty-sixth of February, 1879, they delivered to the Lawisburg National Bank all the policies, and a written instrument, of which, so far as is material, the following is a copy: ‘We hereby transfer the following insurance policies, amounting to $16,000, to the Lewisburg National Bank, as collateral security for claims said bank holds against us; and that, in case of loss by fire to any of our properties insured in the following companies, shall be payable to said Lewisburg National Bank, as their claim against us may appear;’ naming the policies referred to. The consent of the defendant was not indorsed upon the policy, nor does it appear to have been given or asked for. The property was damaged by fire in August, 1879, and afterwards, but before suit brought, the claims of the bank were paid in full by the plaintiffs, and the policies with the written transfer returned to them.
The defendant alleged by its answer (1) that the policy was canceled by it before the fire; (2) that it was assigned without their consent; (3) that notice of the fire and proofs of loss were not given in pursuance of the terms on which the policy was issued. Upon the trial it appeared that the policy contained the following provisions:
etc., requiring what is commonly called ‘proofs of loss.’
On defendant's motion for nonsuit, the trial judge decided that the first and second defenses were not maintained, and submitted the other to the jury, who found in favor of the plaintiffs. Judgment in their favor was duly entered, and, upon appeal, affirmed by the general term.
W. E. Hughitt, for appellant, New York Cent. Ins. Co.
Reynolds & Collins, for respondents, Benjamin Griffey and another.
It may be conceded that the defendants notified the insured, before the fire, of a desire to cancel the policy, but there is no evidence that any proportion of the unearned premium was paid back; on the contrary, the defendants only proposed to do this after the policy should be returned by the insured. They had no right to impose that condition, nor could they require the insured to take any step in the matter. The option to cancel was reserved, but to be exercised by ‘notice and refunding a ratable proportion of the premium for the unexpired time’ of the policy. What the defendants did was to ask the insured to return the policy for cancellation; promising in that case ‘to remit to them the return premium.’ This was not enough. Notice of cancellation and actual payment or tender of the sum due could alone suffice. Van Valken burgh v. Lenox Fire Ins. Co., 51 N. Y. 465. Under the provision of the policy requiring notice of loss to be ‘forthwith’ given, it was enough for the insured to act in that matter with diligence and without unnecessary delay. It was therefore properly left to the jury to say whether, in view of all the circumstances of the case, the notice actually given was sufficient. It was not instantaneous, but the delay was brief. Among other things, it appeared that the fire occurred on the thirtieth day of August. The bank gave notice of it on the first of September, and on or before the fourth of September the assured also notified the defendant of the fire and loss. Even this delay was accounted for. Sunday intervened, and during the other days the assured was busy with the adjusters of different insurance companies concerned in the loss, and with matters connected with the fire. The jury might properly, in view of these and other things in evidence, find that the delay was not unreasonable. The question, at least, was for them.
The other point made for the appellant rests upon the claim against ‘assignment’ of the policy. It entails a forfeiture, and must therefore receive a strict construction. Hence, no other meaning can be given to the language used than a most rigid and literal interpretation permits; and as the condition is a limitation of liability, it cannot be extended by interpretation so as to include a case not clearly within the words. Rann v. Home Ins. Co., 59 N. Y. 387. So, if the words are of doubtful meaning, or susceptible of two fair interpretations, they should be construed to uphold rather than avoid the policy. Hoffman v. AEtna Ins. Co., 32 N. Y. 405. In the first place it is apparent that nothing but an effectual assignment or transfer will come within its terms. In this sense, the policy was not transferred. No interest in the insured property was conveyed, but it all remained as before. In case of loss, therefore, the transferee could not recover, not only because it had suffered no loss, and was not a party to the contract, but because the transfer of the policy was not accompanied with any interest in the subject of insurance. The clause in question, although of several members, is in itself single, and is...
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