Walthear v. Pennsylvania Fire Insurance
Appellate Division of the Supreme Court of the State of New York
Appeal by the defend an j;, Tbe Pennsylvania Eire Insurance Company, from a judgment of the Supreme Court in favor, of 'the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1895, upon the verdict of a jury, rendered by direction of the .court after a- trial at the New York Circuit.
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Appeal by the defend an j;, Tbe Pennsylvania Eire Insurance Company, from a judgment of the Supreme Court in favor, of 'the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1895, upon the verdict of a jury, rendered by direction of the .court after a- trial at the New York Circuit. The action was brought to recover damages for loss by fire under a policy of- insurance dated August II, 1892, issued' by the defendant upon property of the plaintiff. The policy was in the standard New York form and contained, among others, the following…
1Opinion of the Court
O’Brien, J.:
The legal question is: Can a fire insurance company terminate a policy without actually returning and paying to the assured the unearned premium ?
It is insisted by the respondent that the covenant not to retain the premium is an integral part of the cancellation proviso, and that the payment of the unearned premium is no less an essential part of the act of cancellation ; that to cancel the policy it must return the unearned premium, and that the language “ not to retain ” is not *330satisfied by an actual retention, nor is it any excuse for actual retention to say to plaintiff that “…
2Cases cited2 opinions
- McDermot v. Brooklyn City RailroadNew York Supreme Court · 1894
- Tisdell v. New Hampshire Fire InsuranceThe Superior Court of the City of New York and Buffalo · 1895
3Cited by6 opinions
- German Union Fire Insurance v. Fred G. Clarke Co.Court of Appeals of Maryland · 1911
- Partridge v. Milwaukee Mechanics' InsuranceAppellate Division of the Supreme Court of the State of New York · 1897
- Backus v. Exchange Fire InsuranceAppellate Division of the Supreme Court of the State of New York · 1898
- Backus v. Exchange Fire InsuranceAppellate Division of the Supreme Court of the State of New York · 1898
- Gately-Haire Co. v. . Niagara Fire Ins. Co.New York Court of Appeals · 1917
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