Wallerstein v. Columbian Insurance
The Superior Court of New York City
This action was brought to recover $20,000 upon an open policy of insurance, made in February, 1862, whereby the defendants insured the plaintiffs “ on merchandise free of particular aver age,” by vessels from ports in Europe to New York, risks to be reported for indorsement as soon as known to the assured. In January, 1863, the plaintiffs reported for indorsement 801 bags of coffee, and sixty-four bales of wool, from Havre to New York, by the ship Mortimer Livingston.
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This action was brought to recover $20,000 upon an open policy of insurance, made in February, 1862, whereby the defendants insured the plaintiffs “ on merchandise free of particular aver age,” by vessels from ports in Europe to New York, risks to be reported for indorsement as soon as known to the assured. In January, 1863, the plaintiffs reported for indorsement 801 bags of coffee, and sixty-four bales of wool, from Havre to New York, by the ship Mortimer Livingston. The indorsement was made accordingly, the defendants adding to the indorsement of each parcel the words u free from…
1Opinion of the Court
By the Court, Monell, J.
The single question presented in this case is, whether the defendants are liable upon their policy, as for a total loss of the property insured. The words “ free from particular average,” in the policy, are understood to mean free from partial loss, and are equivalent to “free of average,” or “ free of average except general.” Such a policy is an insurance against a total physical loss only. Underwriters, being unwilling to indemnify against the deterioration of perishable property, stipulate to pay only in the event of a total loss of the thing insured, by reason of…
2Cases cited3 opinions
- Maggrath v. ChurchNew York Supreme Court · 1803
- De Peyster v. . Sun Mutual Insurance CompanyNew York Court of Appeals · 1859
- Neilson v. Columbian Insurance Co.New York Supreme Court · 1805