Van Loan v. Farmers' Mutual Fire Insurance Ass'n of Catskill

90 N.Y. 280, 1882 N.Y. LEXIS 377

• Court: New York Court of Appeals
• Decided: October 27, 1882
• Status: Published

Opinion

Earl, J.

This is not an action based upon a policy of insurance issued by the defendant to the plaintiff, but it is an action upon a paroi contract to issue a valid policy of insurance, and the relief sought is a judgment requiring the defendant to issue to the plaintiff such a policy and then to pay the amount insured thereby. That an insurance company like the defendant can by paroi bind itself to issue a valid policy is abundantly established by the authorities. (Commercial Mutual Marine Ins. Co. v. Union Mut. Ins. Co., 19 How. [U. S.] 318; The Trustees of the First Baptist Church v. The Brooklyn Fire Ins. Co., 19 N. Y. 305.) Here it is entirely clear that a valid agreement for insurance was made between the plaintiff and defendant. She applied to one of defendant’s directors for insurance. It must be assumed that she knew the character of the defendant, and the purpose for which it was organized, and her application for insurance was an application to become a member of the defendant, upon the terms and conditions prescribed in its charter and its constitution and by-laws. (De Grove v. The Metropolitan Ins. Co., 61 N. Y. 594; 19 Am. Rep. 305; Train v. The Holland Purchase Ins. Co., 62 N. T. 598.) She must have expected ,a policy in the usual form issued by the defendant, and must be deemed to have agreed to accept such a policy. She must also be deemed to have agreed in advance to pay the consideration in the mode prescribed by the defendant’s charter, constitution and by-laws. The agreement for this insurance was binding, therefore, not only upon the defendant, but also upon the plaintiff. Defendant could have issued and tendered its policy to the plaintiff and demanded of her the undertaking which she was required to give, and if she had refused to give it, could have compelled her to give it by a proper action. A valid agreement for insurance could be made before the undertaking was given, and would be sustained by the express or implied agreement on the part of the plaintiff to give the undertaking. It is not necessary for the plaintiff to maintain that a valid policy could be issued to her before she had executed and delivered to the defendant the undertaking required of her. Here the undertaking has been delivered by the plaintiff and is in the possession of the defendant, and this action is to compel it to deliver'the policy.

"We do not deem it important, at this time, to say more, except simply to express our concurrence in the very satisfactory opinion pronounced at the General Term. ■

The order of the General Term should be affirmed and judgment absolute given for the plaintiff, with costs.

All concur, except Sapallo and Tracy, JJ., absent.

Order affirmed, and judgment accordingly.