Alston v. Mechanics' Mutual Insurance

New York Supreme Court

Alston v. Mechanics' Mutual Insurance

1 Hill & Den. 510

DecidedJuly 15, 1841

StatusPublished

This text of 1 Hill & Den. 510 (Alston v. Mechanics' Mutual Insurance) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alston v. Mechanics' Mutual Insurance, 1 Hill & Den. 510 (N.Y. Super. Ct. 1841).

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Opinion

By the Court, Cowen, J.

The promise not to use the fire-

place, which was considered quite material by both parties, was made, but grossly violated, and the house was burned down. There is no doubt that the policy was avoided by this breach of good faith, provided the promise as to the future condition of the shop can be considered a representation. It was said in argument that a representation must relate to a present fact. It ' generally does so; but no case has been cited showing that it may not be made of a prospective one. On the contrary, courts have certainly assumed that it may; for instance, that a ship will sail with a certain number of guns and men. (Edwards v. Footner, 1 Camp. 530. Vid. also Bize v. Fletcher, Doug. 284, 5; Park on Ins. 270, S. C., Lond, ed. 1809.) Indeed it seems to me that if representations are to be received at all, they must very often be, in effect, promissory, however they may be expressed; as if a representation be made in the present tense of a fact, the existence of which would be material to the safety of the ship or house insured during the whole time mentioned in the policy. This is a very common case both as to warranties and representations,. Accordingly an eminent writer on insurance says, “A representation, like a warranty, may be either affirmative, as where the insured avers the existence of some fact or circumstance which may affect the risk, or promissory, as where he engages for the performance of something executory.” (1 Marsh, on Ins. 450, Am. cd. of 1810, ch. 10, § 1.) No book was shown on the argument contradicting this, nor am I aware of any. A warranty is very commonly promissory, and if violated only in the letter, the policy is-avoided. The only difference between that and a representation is, that the latter being collateral to and out of the policy, it is enough that it be substantially complied with. The same thing, whether in the present or future tense, which, in a policy, would be a warranty, would, out of it, affect the policy as a representation, if material to the risk.

Motion denied.

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By the Court, Cowen, J.

The promise not to use the fire-

place, which was considered quite material by both parties, was made, but grossly violated, and the house was burned down. There is no doubt that the policy was avoided by this breach of good faith, provided the promise as to the future condition of the shop can be considered a representation. It was said in argument that a representation must relate to a present fact. It ' generally does so; but no case has been cited showing that it may not be made of a prospective one. On the contrary, courts have certainly assumed that it may; for instance, that a ship will sail with a certain number of guns and men. (Edwards v. Footner, 1 Camp. 530. Vid. also Bize v. Fletcher, Doug. 284, 5; Park on Ins. 270, S. C., Lond, ed. 1809.) Indeed it seems to me that if representations are to be received at all, they must very often be, in effect, promissory, however they may be expressed; as if a representation be made in the present tense of a fact, the existence of which would be material to the safety of the ship or house insured during the whole time mentioned in the policy. This is a very common case both as to warranties and representations,. Accordingly an eminent writer on insurance says, “A representation, like a warranty, may be either affirmative, as where the insured avers the existence of some fact or circumstance which may affect the risk, or promissory, as where he engages for the performance of something executory.” (1 Marsh, on Ins. 450, Am. cd. of 1810, ch. 10, § 1.) No book was shown on the argument contradicting this, nor am I aware of any. A warranty is very commonly promissory, and if violated only in the letter, the policy is-avoided. The only difference between that and a representation is, that the latter being collateral to and out of the policy, it is enough that it be substantially complied with. The same thing, whether in the present or future tense, which, in a policy, would be a warranty, would, out of it, affect the policy as a representation, if material to the risk.

Motion denied.

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Bluebook (online)

1 Hill & Den. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alston-v-mechanics-mutual-insurance-nysupct-1841.