Tisdell v. . New Hampshire Fire Ins. Co.

49 N.E. 664, 155 N.Y. 163, 9 E.H. Smith 163, 1898 N.Y. LEXIS 855

• Court: New York Court of Appeals
• Decided: March 1, 1898
• Status: Published

Opinions

Bartlett, J.

The question presented on this appeal is no longer an open one in this court. It was decided in the case of Nitsch v. American Central Insurance Company (152 N. Y. 635), affirmed in this court without an opinion.

In that case, as in this one, the question presented was, whether the provision of the Flew York standard policy of fire insurance, relating to the cancellation of a policy at the instance of the company, requires that, in addition to giving the five days’ notice, the company must return or tender the unearned premiums in order to effect a cancellation. The answer was in the affirmative.

The only question presented for consideration in this case, therefore, is whether the defendant returned or tendered the unearned premium.

The record contains an admission made by the defendant upon the trial, which is as follows: “ It was thereupon admitted by the defendant herein that neither the premium, nor a fro rata amount of the premium of the policy herein, had been returned, paid or tendered to the plaintiff or his agents, or to the firm of Tisdell & Whittlesey, or their agents, by the defendant or its agents.”

It being the law, as we have observed, that, in addition to the notice of cancellation, there must be a return or tender of the unearned premiums in order to effectuate a cancellation of a policy, this admission of the defendant seems to be broad enough not only to support the judgment under review, but to cut off all opportunity for controversy on the subject.

It is urged, however, that this admission must be read in connection with an admission by the plaintiff that T. Y. Brown, defendant’s agent, served upon the firm of Tisdell & Whittlesey a paper of which the following is a copy:

“Sew York, August 7, 1891.

“Tisdell & Whittlesey :

“ You are hereby notified in accordance with conditions of its policy, that the Sew Hampshire-Fire Insurance Company, of Manchester, S. H., desires to terminate its liability and cancel policy So. 548,107, issued to you on the 15th day of November, 1890, by T. J. Temple, at 155 Broadway, New York City, insuring stk. and mchy., 128 Fulton St.

“ Thereforey in pursuance of conditions on which said policy was issued, the said company shall without further notice cancel said policy at noon on the 12tli day of August, 1891, and the p?'o rata unearned premium will be returned by T. V. Brown, agent, 26 Pine Street, Sew York, as provided by conditions of said policy.

“Yours truly,

“SEW HAMPSHIRE FIRE ISSURASCE CO.,

“ T. Y. Brown, Agent?

If it be conceded that the contents of this notice should govern rather than the specific admission of defendant, whenever they come in conflict, the defendant’s contention would not be aided, for the notice is not in disagreement with the admission.

It need not be argued that to notify an assured that the “unearned premium will be returned by T. Y. Brown, Agent,” does not amount to a return of it. So more does the. assertion that the notice does not constitute a tender of the unearned premium require support by way of discussion of the elements which go to make up a legal tender. It has been passed upon by this court in Van Valkenburgh v. Lenox Fire Ins. Co. (51 N. Y. 465).

In that case it was necessary for the defendant under its contract of insurance with the plaintiff either to refund or tender the unearned premiums, in addition to giving a notice of cancellation in order to terminate the policy. It claimed before the court that its notice that the unearned, premium would be returned to him satisfied its obligation in that respect, but the court held that holding the amount of the premium subject to the call of the insured was insufficient. The company was bound to seek him out and tender to him the whole amount due.

The order should be affirmed, with costs.