McLaughlin v. Washington County Mutual Insurance

23 Wend. 525

• Court: New York Supreme Court
• Decided: May 15, 1840
• Status: Published

Opinion

Nelson, C. J.

*By the Court, By the .fourth condition of [ *527 ] the policy, the assured is required forthwith to give notice of the loss, and within thirty days to deliver a particular account of the same to the secretary, verified by oath : and also if requested, the books of account and other papers, &c. This condition is substantially like that of the Ins. Company, passed upon by this court in 7 Cowen, 645, that required “ as particular an account as the nature of the case would admit.” The one here requires no more — and the account rendered in that case is not more partienlar than that furnished here. This clause has always been construed with great liberality, as the party must necessarily often make out the account under embarrassment arising from loss of books, bills of parcels, &c. The clause requires only reasonable information to be given, so that the company may be enabled to form some estimate of their rights and duties, before they are obliged to pay. 11 Johns. R., 260.

The defendants were bound by the policy to pay the loss within four months after the presentation of the preliminary proofs: the learned judge ruled at the circuit, that the plaintiff ivas entitled to interest from that time. It is said in an anonymous case (1 Johns. R. 315) that the general rule is, that interest is not recoverable upon unliquidated damages, or for an uncertain demand ; but that jurors in many cases have a discretion to allow interest by way of damages, according to the circumstances of the case, and that they might exercise that discretion in an action on a policy, to recover a partial loss. Interest was also allowed in Delonguemare v. Traders’ Ins. Co. ; 2 Hall’s R. 589. There was no dispute in the case but that the loss exceeded the amount covered by the policy. In the case of Bridge v. Niagara Ins. Co.; 1 Hall, 261, it was refused on the ground that the defendants were not able to make up the amount of the loss, (it being a partial one) from the proofs furnished them, and therefore, could not ascertain the sum to be paid ; and that where the preliminary proofs were so defective as to the amount of the loss, it would be inequitable to charge the defendants with interest. It appears to me this is a sound view of the ques- [ *528 ] tion, and should govern the case before us. *The preliminary proofs as to the amount of loss, were confessedly loose and indefinite ; and though it has been a total one according to the verdict, I should have thought otherwise upon the proof.

The plaintiff has proposed to strike from the verdict the interest, if the court should be against him. Let it stand at the $1000.

New trial denied.