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• Title: Russ Togs v. Fidelity-Phenix Insurance Company
• Author : Supreme Court of New York
• Release Date : January 11, 1971
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

Judgment, Supreme Court, New York County, entered on May 28, 1968, without a jury, dismissing the first two causes of action,
and granting judgment in the third cause of action in favor of plaintiff Juniorite, Inc., unanimously modified on the law,
to the extent that the judgment of dismissal is reversed and judgment is granted the plaintiff, Russ Togs, Inc., to the extent
of 50% of the amounts demanded in the first and second causes of action, with appropriate interest, and otherwise affirmed.
Appellants shall recover of respondent $50 costs and disbursements of this appeal. The plaintiff, Russ Togs, Inc., sent a
letter dated October 19, 1965, to its former broker, requesting cancellation of the subject policies as of October 1, 1965.
It is stipulated that no reply was received from the defendant. At the time, Lloyds had previously, at the request of plaintiff,
issued other policies. Losses occurred October 26, 1965. There has been no change in the law of New York since Louisiana Public
Utilities Co. v. Atlas Assur. Co. (238 App. Div. 474, affd. 263 N. Y. 595). Therein, this court said (p. 477): "The law is
quite clear that a cancellation of insurance is not effective, irrespective of the intention of the insured, until notice
thereof is actually received either by the insurer or by his agent authorized to receive and accept such notice. This is the
law in our State, the forum of this action. (Crown Point Iron Co. v. Aetna Ins. Co., 127 N. Y. 608; Gately-Haire Co. v. Niagara
Fire Ins. Co., 221 N. Y. 162.)" (To the same effect, see: 17 Couch, Insurance [2d ed.], 67:103, p. 455; 6 Appleman, Insurance
Law and Practice, 4226, p. 797; 43 Am. Jur. [2d ed.], Insurance, 426, p. 472.) Accordingly, absent any evidence that defendant
received notice of cancellation, defendant remained liable under its issued policies for fifty percent of the losses sustained,
in view of the existing coinsurance from Lloyds. Settle order on notice.

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