Pupke v. Resolute Fire Insurance Co.

By the Court, PAINE, J. This case presents, among others, the question whether, after an assignment of a policy of insurance, with the consent of the company, a non-compliance with [382] the terms of tbe policy by the assignor, in matters material to the interests of the company, will avoid it as against the as-signee. We are not aware that this question has ever been decided in this states and we feel at liberty to determine it as legal principles seem to require. In New York it has been held that such subsequent violations of the policy by the assignor, did not affect the right of the assignee to recover upon it But the courts there admit that other authorities are against that position; and without searching further, we should not expect to find a more satisfactory exposure of its fallacy and injustice than is contained in the opinions of Justices Woodruff and Bosworth, in the cases of Grosvenor vs. Atlantic Fire Insurance Co., 5 Duer, 517. It is true they decided according to the previous decisions in that state, by which they felt bound. But in doing so they hung out a light by which all who were not bound by those decisions, might see and avoid the error. Their reasoning shows that there is nothing in a consent to the assignment of the policy that can justly be held to waive a compliance with any of the terms or conditions of it essential to the protection of the company. Such consent only authorizes the assignee to be substituted as payee, in case a liability to pay accrues according to the terms and conditions of the policy. But if those terms and conditions are not complied with, then there is never any liability to pay anybody. And it is immaterial whether the violation occurs after or before the loss. If it be such a violation as would defeat a recovery by the party originally insured, it must have like effect as against the assignee. For these reasons, the evidence offered to show a violation of the policy by the assignors, after the assignment, should have been admitted. The judgment is reversed, with costs, and a new trial ordered.'