False representation. Alteration increasing risk. Alteration not increas⚫ing risk. Acts of the insured. Measure of indemnity. SEC. 2752. An insurance against fire is not affected by concealment, nor by the falsity of a representation not inserted in the policy, though in a material particular, unless made with a fraudulent intent. N. Y. C. C., Sec. 1514. SEC. 2753. An alteration in the use or condition of a thing insured, from that to which it is limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance. N. Y. C. C., Sec. 1515; Ang. Ins., 206. SEC. 2754. An alteration in the use or condition of a thing insured, from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. N. Y. C. C., Sec. 1516. SEC. 2755. A contract of fire insurance is not affected by any act of the insured, subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk, and is the cause of a loss. N. Y. C. C., Sec. 1517. SEC. 2756. If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense, at the time that the loss is payable, of replacing the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of ma rine insurance. N. Y. C. C., Sec. 1518. Insurance upon life, when payable. CHAPTER IV. LIFE AND HEALTH INSURANCE. SECTION 2762. Insurance upon life, when payable. 2763. Insurable interest. 2764. Assignee, etc., of life policy need have no interest. 2765. Notice of transfer. 2766. Measure of indemnity. SEC. 2762. An insurance upon life may be made pay able on the death of the person, or on his surviving a specified period, or periodically so long as he shall live, or otherwise contingently on the continuance or determination of life. N. Y. C. C., Sec. 1519. SEC. 2763. Every person has an insurable interest in Insurable the life and health 1. Of himself. 2. Of any person on whom he depends wholly or in part for education or support. 3. Of any person under a legal obligation to him for the payment of money, or respecting property or services, of which death or illness might delay or prevent the performance; and, 4. Of any person upon whose life any estate or interest vested in him depends. A sister has an insurable interest in the life of her brother, who stands in place of a parent to her. (Lord vs. Dall, 12 Mass., 115.) N. Y. C. C., Sec. 1520. SEC. 2764. A policy of insurance upon life or health may pass by transfer, will or succession to any person, whether he has an insurable interest or not, and such person may recover upon it whatever the insured might have recovered. N. Y. C. C., Sec. 1521. interest. Assignee, policy need etc, of life have no interest. transfer. SEC. 2765. Notice to an insurer of a transfer or be- Notice of quest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required. N. Y. C. C., Sec. 1522; Ang. Ins., 413. indemnity. SEC. 2766. Unless the interest of a person insured is Measure of susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. N. Y. C. C., Sec. 1523. sons. NOTE. This Title is adopted as a body from the New York Civil Code. The various notes of the New York Code Commissioners are not reprinted, for economical reaDueron Insurance" is of frequent reference, and the sections generally are drawn from the New York decisions and eminent writers on the Law of Insurance. As a whole, we think it well adapted to our State, and recommend its adoption. Indemnity, what. Indemnity for a future wrongful act, void. Indemnity for a past wrongful act, valid. Indemnity extends to TITLE XII. INDEMNITY. SECTION 2772. Indemnity, what. 2773. Indemnity for a future wrongful act, void. 2774. Indemnity for a past wrongful act, valid. 2775. Indemnity extends to acts of agents. 2776. Indemnity to several. 2777. Person indemnifying, liable jointly or severally with person indemnified. 2778. Rules for interpreting agreement of indemnity. 2779. When person indemnifying is a surety. 2780. Bail, what. 2781. How regulated. SEC. 2772. Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person. SEC. 2773. N. Y. C. C., Scc. 1524. An agreement to indemnify a person against an act thereafter to be done is void, if the act is known by such person, at the time of doing it, to be wrongful. SEC. 2774. N. Y. C. C., Sec. 1525. An agreement to indemnify a person against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony. N. Y. C. C., Sec. 1526. SEC. 2775. An agreement to indemnify against the acts of agents acts of a certain person, applies not only to his acts, and their consequences, but also to those of his agents. Indemnity to several. Person indemnifying, SEC. 2776. N. Y. C. C., Sec. 1527. An agreement to indemnify several persons applies to each, unless a contrary intention appears. N. Y. C. C., Sec. 1528. SEC. 2777. One who indemnifies another against an liable jointly act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act. or severally with person indemnified. N. Y. C. C., Sec. 1529. SEC. 2778. In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable. 2. Upon an indemnity against claims, or demands, or damages or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof. 3. An indemnity against claims, or demands, or liabil ity, expressly, or in other equivalent terms, embraces the costs of defence against such claims, demands or liability incurred in good faith, and in the exercise of a reasonable discretion. 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defences, if he chooses to do so. 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is conclusive in his favor against the former. 6. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defence, judgment against the latter is only presumptive evidence against the former. 7. A stipulation that a judgment against the person indemnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defence upon the merits, which by want of ordinary care he failed to establish in the action. N. Y. C. C., Sec. 1530. SEC. 2779. Where one, at the request of another, engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay. N. Y. C. C., Sec. 1531. Bail, what. How regu lated. SEC. 2780. Upon those contracts of indemnity which are taken in legal proceedings, as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. N. Y. C. C., Sec. 1532. SEC 2731. The obligations of bail are governed by the statutes specially applicable thereto. N. Y. C. C., Sec. 1533. TITLE XIII. GUARANTY. CHAPTER I. GUARANTY IN GENERAL. CHAPTER I. GUARANTY IN GENERAL. ARTICLE I. DEFINITION OF GUARANTY. V. CONTINUING GUARANTY. VI. EXONERATION OF GUARANTORS. Guaranty, what. ARTICLE I. DEFINITION OF GUARANTY. SECTION 2787. Guaranty, what. 2788. Knowledge of principal not necessary to creation of guar anty. SEC. 2787. A guaranty is a promise to answer for the debt, default or miscarriage of another person. This definition is in the precise language of the statute of frauds (2 R. S., 135, Sec. 2), except that it omits the word " special" before "promise." It of course includes a contract of suretyship, but every guarantor is not necessarily a surety. N. Y. C. C., Sec. 1534. |