Sun Mutual Insurance v. Davis

The Superior Court of New York City

Sun Mutual Insurance v. Davis

1 Rob. 602

CourtThe Superior Court of New York City

DecidedJune 7, 1864

StatusPublished

This text of 1 Rob. 602 (Sun Mutual Insurance v. Davis) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sun Mutual Insurance v. Davis, 1 Rob. 602 (N.Y. Super. Ct. 1864).

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Opinion

By the Court, McCunn, J.

In discussing the merits of this demurrer, we are not warranted in looking at the facts in any other light than as the complaint presents them, because the interposition of a demurrer admits the truth of all the allegations contained in the complaint, and the only question to be determined is, whether a judgment entered upon these facts would be good and valid in law. I am clearly of opinion they would warrant the entry of a judgment thereon, in favor of the plaintiffs.

The policy declared on' is an open policy, and is in the ordinary form, and contains the usual clause, for whom it may concern, and it had been effected by William Grove & Go., before the partnership between them and Davis & Toscano was formed, yet the company had a right to select their risks thereunder, and as they thought proper to assume these risks in consideration of the premiums agreed to be paid by the defendants, they are clearly entitled to recover.. It is true the policy was effected in the name of William Grove & Go., but no presumption of law arising on the face of the policy can presume away an express promise made afterwards, by other parties, for a full consideration. Moreover, one half of the sugars entered under the risks were the goods of Davis & Toscano, and under this form of policy they had a right to enter these shipments as risks, and consequently they had an interest in, and were entitled to, the benefits of the policy, and by virtue of mutuality of contract they became liable to the insurers. (3 Kent’s Com. 344, 9th ed. 2 Caines' Rep. 203.) * •

And for all that appears in the complaint, the policy may have been effected by Wm. Grove & Go., in their own name, to cover these very risks ; at any rate, the complaint alleges • [606]*606that all the parties agreed to pay, or be responsible for the premiums at the time the risks were entered, and it was for this consideration the risks were assumed by the company.

It may be remarked here, that the facts set out in the points offered to sustain this demurrer can be conveniently set up in the form of an answer. ■

The order must be reversed; the defendants to be permitted to. withdraw their demurrer- and answer within twenty days, upon payment of costs.

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By the Court, McCunn, J.

In discussing the merits of this demurrer, we are not warranted in looking at the facts in any other light than as the complaint presents them, because the interposition of a demurrer admits the truth of all the allegations contained in the complaint, and the only question to be determined is, whether a judgment entered upon these facts would be good and valid in law. I am clearly of opinion they would warrant the entry of a judgment thereon, in favor of the plaintiffs.

The policy declared on' is an open policy, and is in the ordinary form, and contains the usual clause, for whom it may concern, and it had been effected by William Grove & Go., before the partnership between them and Davis & Toscano was formed, yet the company had a right to select their risks thereunder, and as they thought proper to assume these risks in consideration of the premiums agreed to be paid by the defendants, they are clearly entitled to recover.. It is true the policy was effected in the name of William Grove & Go., but no presumption of law arising on the face of the policy can presume away an express promise made afterwards, by other parties, for a full consideration. Moreover, one half of the sugars entered under the risks were the goods of Davis & Toscano, and under this form of policy they had a right to enter these shipments as risks, and consequently they had an interest in, and were entitled to, the benefits of the policy, and by virtue of mutuality of contract they became liable to the insurers. (3 Kent’s Com. 344, 9th ed. 2 Caines' Rep. 203.) * •

And for all that appears in the complaint, the policy may have been effected by Wm. Grove & Go., in their own name, to cover these very risks ; at any rate, the complaint alleges • [606]*606that all the parties agreed to pay, or be responsible for the premiums at the time the risks were entered, and it was for this consideration the risks were assumed by the company.

It may be remarked here, that the facts set out in the points offered to sustain this demurrer can be conveniently set up in the form of an answer. ■

The order must be reversed; the defendants to be permitted to. withdraw their demurrer- and answer within twenty days, upon payment of costs.

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Bluebook (online)

1 Rob. 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-mutual-insurance-v-davis-nysuperctnyc-1864.