Lett v. Guardian Fire Ins. Co.

• Decision Date: 02 December 1890
• Citation: 125 N.Y. 82,25 N.E. 1088
• Parties: LETT v. GUARDIAN FIRE INS. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 82

25 N.E. 1088

LETT

v.GUARDIAN FIRE INS. CO.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, first department.

Action by William F. Lett against the Guardian Fire-Insurance Company, on a policy of insurance. A judgment for defendant, entered on the dismissal of the complaint at the trial, was affirmed on appeal to the general term, and from the judgment of affirmance plaintiff appeals.

G. A. Clement, for appellant.

N. B. Hoxie, for respondent.

GRAY, J.

The policy of insurance upon which this plaintiff seeks to recover against the insurance company was not a live instrument in his hands. Its assignment brought no rights of action to him. The facts would seem to establish these propositionswithout the need of argument. The policy was issued to Briggs, as the owner of the property, and the loss, if any, was made payable to Angelina Butler, as mortgagee. Subsequently Briggs, the owner and mortgagor, conveyed to another the premises, subject to the mortgage, and the grantee, in turn, similarly conveyed to plaintiff. At the time of the conveyance to plaintiff Briggs, executed to him an assignment of his interest in the policy, indorsed upon the duplicate of the instrument, which he had in his possession. No consent, however, was indorsed by the company thereon, covering the change of interest, though such a consent was made, by the agreement of insurance, a condition of its continuance in force. It was undoubtedly competent for the company's officers to continue the obligation of the company by a parol consent, as well as by a written consent; but the proof does not, in my opinion, amount to any evidence at all of a consent on the part of the company to the change of interest, or to a waiver of the condition contained in the policy in that respect. The plaintiff thinks he can overcome this difficulty, however, and argues the possibility of an inference being deducible, from the facts, of a consent by the defendant to the change of interest. But all there is of that is that when the policy was taken by plaintiff's broker to the office and the demand made for an indorsement of a consent to the change of interest, the officer, in returning it, said that it had been canceled. Upon this plaintiff took out a policy, for the same amount, in another company, and also demanded from Briggs a return of the allowance for premium made to him upon the transfer of the policy. These acts evidenced his acquiescence in the statement of the officer. But plaintiff's counsel insists that his client was misled by the officer's statement, and that the case shows an admission that the policy had not been canceled, and therefore the conduct of the officer in so returning the policy, when presented for the consent to the change in ownership, was, for absence of words of refusal to consent, susceptible of the inference that if the policy had not been canceled the company's consent would be given. That is not sufficient for his case. To supply the want of the formal consent in writing, the proof must show, or tend to show, some waiver of the condition, or a parol consent. For such to be inferred there must be some evidence of language or facts expressive of a waiver or of consent. There was nothing more here than the statement that the policy...