Open and valued policies. Open policy, what. Valued policy, what. Running person becomes the owner of both the policy and the thing insured. N. Y. C. C., Sec. 1407. SEC. 2591. A policy is either open or valued. N. Y. C. C., Sec. 1408. SEC. 2595. An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. N. Y. C. C., Sec. 1409; 3 Kent Com., 272. SEC. 2596. A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. N. Y. C. C., Sec. 1410. SEC. 2597. A running policy is one which contemplates policy, what. successive insurances, and which provides that the object of the policy may be from time to time defined, especially as to the subjects of insurance, by additional statements or indorsements. Effect of receipt. Agreement not to transier. N. Y. C. C., Sec. 1411. SEC. 2598. An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid. N. Y. C. C., Sec. 1412. SEC. 2599. An agreement made before a loss, not to transfer the claim of a person insured against the insurer, after the loss has happened, is void. N. Y. C. C., Sec. 1413. ARTICLE VII. WARRANTIES. SECTION 2603. Warranty, express or implied. 2604. Form. 2605. Warranty must be in policy. 2606. Past, present and future warrar ties 2607. Warranty as to past or present. 2608. Warranty as to the future. 2609. Performance excused. SECTION 2610. What acts avoid the policy. 2611. Policy may provide for avoidance. 2612. Breach without fraud. SEC. 2603. A warranty is either express or implied. N. Y. C. C., Sec. 1414. Warranty, express or implied. SEC. 2604. No particular form of words is necessary Form. to create a warranty. N. Y. C. C., Sec. 1415. SEC. 2605. Every express warranty, made at or before the execution of a policy, must be contained in the policy itself, and another instrument, whether upon the same paper or not, cannot be referred to as making a part of the policy for this purpose, even by agreement of the parties. N. Y. C. C., Sec. 1416. SEC. 2606. A warranty may relate to the past, the present, the future, or to any or all of these. N. Y. C. C., Sec. 1417. SEC. 2607. A statement in a policy, of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. N. Y. C. C., Sec. 1418. Warranty policy. must be in Past, present and future warranties. Warranty as present. to past.or as to the SEC. 2608. A statement in a policy, which imports Warranty that it is intended to do or not to do a thing which mate- future. rially affects the risk, is a warranty that such act or omission shall take place. N. Y. C. C., Sec. 1419; 5 Duer Ins., 587. excused. SEC. 2609. When, before the time arrives for the per- Performance formance of a warranty relating to the future, a loss insured against happens, or performance becomes unlawful or impossible, the omission to fulfil the warranty does not avoid the policy. N. Y. C. C., Sec. 1420. SEC. 2610. The violation of a material warranty, or other material provision of a policy, on the part of either party thereto, entitles the other to rescind. N. Y. C. C., Sec. 1421. SEC. 2611. A policy may declare that a violation of Policy may specified provisions thereof shall avoid it; otherwise the provide for avoidance. Breach without fraud. breach of an immaterial provision does not avoid the policy. SEC. 2612. N. Y. C. C., Sec. 1422. A breach of warranty, without fraud, merely exonerates an insurer from the time that it occurs; or, where it is broken in its inception, prevents the policy from attaching to the risk. N. Y. C. C., Sec. 1423; 2 Duer Ins., 435. When pre. mium is earned. Return of premium. When none allowed. Return for fraud. ARTICLE VIII. PREMIUM. SECTION 2616. When premium is earned. 2617. Return of premium. 2618. When none allowed. 2619. Return for fraud. 2620. Over-insurance by several insurers. 2621. Contribution. 2622. Proportionate contribution. SEC. 2616. An insurer is entitled to payment of the premium, as soon as the thing insured is exposed to the peril insured against. N. Y. C. C., Sec. 1424. SEC. 2617. A person insured is entitled to a return of premium paid, or a ratable proportion thereof, if no part of his interest in the thing insured is exposed to any of the perils insured against; or, where the insurance is made for a definite period of time, if it is not exposed to such peril for the whole of that time. N. Y. C. C., Sec. 1425. SEC. 2618. If a peril insured against has existed, and the insurer has been liable, for any period, however short, the insured is not entitled to a return of premium, so far as that particular risk is concerned, unless the insurance was for a definite period of time, in which case he is entitled to a proportionate return under the preceding section. N. Y. C. C., Sec. 1427. SEC. 2619. A person insured is entitled to a return of the premium when the contract is voidable, on account of the fraud or misrepresentation of the insurer, or on account of facts, of the existence of which the insured was ignorant without his fault; or when, by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy. N. Y. C. C., Sec. 1426. ance by several insurers. SEC. 2620. In case of an over-insurance by several in- Over-insursurers, the insured is entitled to a ratable return of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk. N. Y. C. C., Sec. 1428. SEC. 2621. When an over-insurance is effected by sim- Centribution ultaneous policies, the insurers contribute to the premium to be returned, in proportion to the amount insured by their respective policies. N. Y. C. C., Sec. 1429. SEC. 2622. When an over-insurance is effected by successive policies, those only contribute to a return of the premium who are exonerated by prior insurances from the liability assumed by them, and in proportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. N. Y. C. C., Sec. 1430. Proportionbution. ate contri. ARTICLE IX. LOSS. SECTION 2626. Perils, remote and proximate. 2627. Loss incurred in rescue from peril. 2628. Excepted perils. 2629. Negligence and fraud. remote and SEC. 2626. An insurer is liable for a loss of which a Perils, peril insured against was the proximate cause; although proximate. a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was only a remote cause. N. Y. C. C., Sec. 1431. Loss incur. red in rescue from peril. Excepted perils. Negligence and fraud. SEC. 2627. An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril, not insured against, which permanently deprives the insured of its possession, in whole or in part; or where a loss is caused by efforts to rescue the thing insured from a peril insured against. N. Y. C. C., Sec. 1432. SEC. 2628. Where a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby excepted; although the immediate cause of the loss was a peril which was not excepted. SEC. 2629. N. Y. C. C., Sec. 1433; 1 Duer, 371. An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, nor by fraud or negli gence on the part of his agents or others. N. Y. C. C., Sec. 1434. ARTICLE X. NOTICE OF LOSS. Notice of loss. Preliminary proofs. SECTION 2633. Notice of loss. 2634. Preliminary proofs. 2635. Waivers of defects in notice, etc. 2636. Waiver of delay. 2637. Certificate, when dispensed with. SEC. 2633. In case of loss, an insurer is exonerated, if notice thereof is not given to him by some person insured, or entitled to the benefit of an insurance, without unnecessary delay. N. Y. C. C., Sec. 1435. SEC. 2634. When preliminary proof of loss is required by a policy, the insured is not bound to give such proof as would be necessary in a Court of justice; but it is suf ficient for him to give the best evidence which he has in his power at the time. N. Y. C. C., Sec. 1436. |