Merchants Mutual Insurance v. Valilis

Order, entered August 1, 1961, denying defendant’s motion for summary judgment, unanimously affirmed, on the law, with $20 costs and disbursements to respondent. Under the circumstances here, the delivery by the defendant (the insured) of a check for the balance of the premium and the acceptance of the same by the broker would not have the effect of nullifying or waiving a cancellation of the policy, if duly effected. (See Insurance Law, § 121; Mord v. Hartford Acc. & Ind. Co., 245 N. Y. 279; Standard Acc. Ins. Co. v. Roth, 28 Misc 2d 1080.) Therefore, if the plaintiff insurance company had complied with the requirements to effect a cancellation of the policy, it would be entitled to judgment. The matter of whether or not there was such compliance, including whether or not there was a due mailing of the notice of cancellation to the insured was not, however, briefed or argued; and the plaintiff on this appeal merely asks for affirmance of the order denying defendant’s motion for summary judgment. Therefore, we have not considered the question of whether or not plaintiff should have had judgment in its favor on this motion. Concur — McNally, J. P., Stevens, Eager, Steuer and Bastow, JJ.