Goold v. United Insurance Co.

2 Cai. Cas. 73

• Court: New York Supreme Court
• Decided: May 15, 1804
• Status: Published

Opinion

Spencer, J

delivered the opinion of the court. The plaintiffs’ counsel have attempted to show that the transfer to Amoresta was only an assignment of the insurance, and not of ihe vessel or money; this is a refinement not warranted by the fact: and though it be true that upon a warranty of neutrality the happening of an event -which changes the neutral character, without any act of the party, will not be considered a breach of the warranty ; yet it is equally true that the party who so engages for the neutrality of the subject insured, cannot himself change the neutral character of the subject without the forfeiture of his right on the policy.

(a) Here Ferrall, after capture, but before condemnation, assigned one half of the subject insured to one of the belligerants, and thereby infringed his warranty. It is not any answer to the objection to say that the condemnation was not on this ground ; or that this was after capture; the loss was not consummated until condemnation. The warranty has not been complied with, and the transfer might have increased the risk. On this ground, the court is of opinion that by the transfer to Amoresta, the insurers are discharged, and that, therefore, judgment of nonsuit be entered.

Judgment of nonsuit.

Doug. Í05. The parties themselves cannot change the nature of the policy.