Rushing v. Commercial Cas. Ins. Co.

Decision Date11 July 1929
Citation167 N.E. 450,251 N.Y. 302
PartiesRUSHING v. COMMERCIAL CASUALTY INS. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Marjorie G. Rushing against the Commercial Casualty Insurance Company. From a judgment of the Appellate Division (225 App. Div. 49, 232 N. Y. S. 255) in favor of plaintiff after the submission of a controversy upon an agreed statement of facts under Civil Practice Act, § 546, defendant appeals by permission.

Judgment reversed, and submission dismissed without prejudice.Appeal from Supreme Court, Appellate Division, First department.

Daniel Mungall, of New York City, for appellant.

Irwin L. Tappen, of Paterson, N. J., for respondent.

CARDOZO, C. J.

In a controversy submitted to the Appellate Division upon an agreed statement of facts, the plaintiff seeks to charge the defendant with liability under Insurance Law (Cons. Laws, ch. 28) § 109.

The defendant issued to a householder its policy of insurance indemnifying against claims for damages. A condition of the policy is that, ‘upon the occurrence of an accident’ covered thereby, ‘the assured shall give immediate notice, with the fullest information obtainable at the time, to the company or its duly authorized agent.’ Plaintiff was injured on October 6, 1920, by falling on the stairs in the house belonging to the assured. She brought action later for her damages. The assured waited till October 28, a space of 22 days following the accident, before giving notice to the insurer in compliance with the policy. There was prompt disclaimer of liability, followed by a compromise. The assured consented on his part that because of the dilatory notice the insurer be relieved of liability to him for any judgment to be rendered. The insurer bound itself to defend without cost to the assured the action then pending for the recovery of damages. In the action thus defended plaintiff had a judgment which is still unpaid after return of execution. The question is whether the insurer may be held under the statute.

In the absence of explanation or excuse, a notice of an accident withheld for 22 days is not the immediate notice called for by the policy. There may, indeed, be circumstances, such as absence from the state or lack of knowledge of the accident, that will explain or excuse the delay and show it to be reasonable. Greenwich Bank v. Hartford Fire Ins. Co. of Hartford, Conn., 250 N. Y. 116, 164 N. E. 876;Solomon v. Continental Fire Ins. Co., 160 N. Y. 595, 55 N. E. 279,46 L. R. A. 682, 73 Am. St. Rep. 707. If so, the burden of going forward with the proof and supplying the data necessary to repel the adverse inference must rest on the assured. The consequence will be the same whether the condition be classified as precedent or subsequent, its inclusion under the one head or the other being dependent on the wording of the policy. Black Co. v. London Guarantee & Accident Co., 190 App. Div. 218, 221, 180 N. Y. S. 74, affirmed 232 N. Y. 535, 134 N. E. 561. If precedent, the assured must prove compliance, which includes, of course, excuse or...

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136 cases
  • Indian Harbor Ins. Co. v. City of San Diego
    • United States
    • U.S. District Court — Southern District of New York
    • September 25, 2013
    ...notice is enough to shift the burden to the City to show the reasonableness of any applicable excuse. Cf. Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302, 167 N.E. 450, 451 (1929) (twenty-two-day delay unreasonable); US Pack Network Corp. et al. v. Travelers Prop. Cas., 23 A.D.3d 299, 808......
  • Hammersmith v. Tig Ins. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 15, 2007
    ...206 (1987); see, e.g., Deso, 143 N.E.2d at 889 (fifty-one day delay unreasonable as a matter of law); Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302, 167 N.E. 450 (1929) (finding a twenty-two day delay unreasonable as a matter of law in the absence of explanation or excuse); American Ins......
  • Olenick v. Government Emp. Ins. Co.
    • United States
    • New York Supreme Court
    • November 22, 1971
    ...App.Div. 817, 281 N.Y.S. 407; Green v. Globe & Rutgers Fire Ins. Co., 200 App.Div. 343, 192 N.Y.S. 770; see Rushing v. Commercial Casualty Ins. Co., 251 N.Y. 302, 167 N.E. 450; Mason v. Allstate Ins. Co., 12 A.D.2d 138, 209 N.Y.S.2d 104, except, it seems, when the carrier relies on an exclu......
  • John Houran, Jr., Admr. v. the Preferred Accident Insurance Company of New York
    • United States
    • Vermont Supreme Court
    • November 2, 1938
    ... ... 518, 169 A. 760, 761; Slavens v. Standard ... Accident Ins. Co. , 27 F.2d 859, 861; Metropolitan ... Casualty Ins. Co. v ... Boston ... Elevated Ry. Co. v. Maryland Cas. Co. , 232 ... Mass. 246, 122 N.E. 196, 198. Moreover, the letter is not ... it to be reasonably prompt. Rushing v ... Commercial Casualty Ins. Co. , 251 N.Y. 302, 304, 167 ... N.E ... ...
  • Request a trial to view additional results
5 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...Factors, Inc. v. Fairview Manufacturing Co. , 34 AD2d 635, 309 NYS2d 610 (1st Dept 1970), §40:463 Rushing v. Commercial Cas. Ins. Co., 251 NY 302, 167 NE 450 (1929), §38:102 Rush v. Savchuk , 444 US 320, 100 SCt 571 (1980), §§7:533, 36:173 Russell v. Dunbar , 40 AD3d 952 (2d Dept 2007), §3:......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...Factors, Inc. v. Fairview Manufacturing Co. , 34 AD2d 635, 309 NYS2d 610 (1st Dept 1970), §40:463 Rushing v. Commercial Cas. Ins. Co., 251 NY 302, 167 NE 450 (1929), §38:102 Rush v. Savchuk , 444 US 320, 100 SCt 571 (1980), §§7:533, 36:173 Russell v. Dunbar , 40 AD3d 952 (2d Dept 2007), §3:......
  • Expedited Judgment: CPLR 3213; 3222
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • May 2, 2018
    ...78 NE2d 604 (1948).] • Disagreement over the rights and obligations under an insurance contract. [See Rushing v. Commercial Cas. Ins. Co., 251 NY 302, 167 NE 450 (1929).] • Construction of a collective bargaining agreement [See Manhattan Storage & Warehouse Co. v. Movers & Warehousemen’s As......
  • Expedited Judgment: CPLR 3213; 3222
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...78 NE2d 604 (1948).] • Disagreement over the rights and obligations under an insurance contract. [See Rushing v. Commercial Cas. Ins. Co., 251 NY 302, 167 NE 450 (1929).] • Construction of a collective bargaining agreement [See Manhattan Storage & Warehouse Co. v. Movers & Warehousemen’s As......
  • Request a trial to view additional results

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