(DOWNLOAD) "John M. Kyer v. General Casualty Company America" by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: John M. Kyer v. General Casualty Company America
- Author : Supreme Court of New York
- Release Date : January 01, 1961
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 73 KB
Description
Appeal from a judgment entered on the verdict of a jury rendered at a Trial Term, Supreme Court, Albany County. Plaintiff was injured by a motor vehicle owned by his brother and has obtained a judgment by default against him. The owner of the vehicle was insured by defendant, but the premium installments not having been paid when due defendant elected to cancel the policy. The central question in the case is whether the policy had been effectively cancelled before the accident. On July 10, 1957 defendant mailed an envelope to its insured. The mailing itself is fully established and plaintiff does not dispute it on appeal. Defendant contends that this envelope contained a "notice of termination" in conformity with section 93-c of the Vehicle and Traffic Law (as it read in 1957). Plaintiff argues there is no adequate proof of what the envelope contained. There is proof, however, that the practice of defendant in mailing notices of cancellation was that such notices only were sent in window envelopes and were prepared on white paper, the color of which showed through the window of the envelope; and there is adequate proof of the mailing of a window envelope with the address on white paper to the insured in this case. On cross-examination by plaintiffs counsel the witness who mailed the notice testified to his "personal knowledge" that the paper in the envelope was a notice of termination and when the further question of "how" he could do that was asked, he testified that "the only thing in the company that comes down from an underwriter in a window envelope is a Notice of Cancellation". We think on the whole, the circumstantial evidence and the proof of mailing and other procedures in the companys office fairly sustain the jurys finding that a notice of cancellation was given the assured. Thus the defendants coverage of the vehicle was ended 10 days later on July 20, 1957. Not only did the policy itself provide thus for cancellation, but this was the way the statute provided for it (§ 93-c); as to the general effect of such mailing, see Lesk v. London & Lancashire Ind. Co. (286 N. Y. 443) and Casper v. Great Amer. Ind. Co. (277 App. Div. 1127). Although there is proof that the notice of cancellation was also mailed by defendant to the Commissioner of Motor Vehicles at the same time, a search of the records of the Motor Vehicle Bureau did not locate this notice, and for this reason the insureds license plates were not recalled by the bureau. The accident in which plaintiff was injured occurred almost nine months after the cancellation of the policy, on January 4, 1958. The issue whether the notice was sent to the Commissioner was not submitted to the jury by the court because it was of opinion cancellation depended on whether or not notice had been sent the insured. Although the statute requires that notice of cancellation be sent by the carrier to the Commissioner "not later than thirty days following the effective date of such cancellation" it seems clear that the failure to do this would not continue the policy in effect. The words "following the effective date of" the cancellation suggest the filing of notice after the policy was no longer in effect, and the provisions of the statute read together suggest that effectiveness of cancellation should not depend on notice to the Commissioner. The jurys finding that notice of cancellation was given is sufficiently supported and no other basis of liability of the defendant has been demonstrated.
 "John M. Kyer v. General Casualty Company America" by Supreme Court of New York ~ eBook PDF Kindle ePub Free){kind=link}