IV. That thereupon, and in compliance with his said covenant, the said M. N. made application to the defendant for the policy of insurance hereinafter mentioned [continue as in P. III of preceding form, to the*, where insert "loss, if any, to be paid to plaintiff, as his mortgage interest may appear, a copy of which said policy and the direction for payment is hereunto annexed, marked 'A,' and made a part hereof "]. V. That said bond is wholly unpaid, and this plaintiff is the owner and holder thereof and of the said mortgage. [Allege destruction of premises, amount of loss, performance by M. N1 of conditions precedent, and non-payment to plaintiff by defendant, as in the preceding form.] WHEREFORE [etc., demand of judgment]. 369. The Same, Showing a Renewal. day of 18, the [As in Form 367, inserting after paragraph III the following:] IV. That on or about the defendant, by its agents duly authorized thereto, in consideration of dollars to it paid by plaintiff, executed and delivered to plaintiff its certificate of renewal of said policy, of which the following is a copy: [copy of the certificate], [or, a copy of which is annexed as a part of this complaint, and marked Exhibit B.], and thereby renewed said insurance for the term of one year from said day of, etc. [Continue as in Form 367.] 370. The Same, where the Plaintiff Purchased the Property after the Insurance. [As in Form 367, substituting, in the averment of the making of the policy, the name of the original insurer in place of the words "the plaintiff;" and inserting the following:] day of 18 the said IV. That on or about the [original insured] duly sold, assigned and conveyed to the plain under the policy. Hathaway v. Orient so. Moore v. Hanover Fire Ins. Co., Ins. Co., 134 N. Y. 409. 71 Hun (N. Y.), 199; 24 N Y. Supp. 507. 'If the owner refuses to make proofs of loss, the mortgagee is entitled to do tiff all his right, title and interest in the said [property insured], and thereupon, with the consent of the defendant, duly indorsed thereupon, assigned and transferred said policy of insurance to plaintiff. [Continue as in Form 367.] 371. By the Assignee after Loss, on an Agreement to Insure, Policy Never Having Been Delivered.1 I. [Incorporation and business of defendant, as in Form 367.] day of II. That on and before the 18 the W. M. Company was a domestic corporation established, at, etc.; that on or about said date, it made application to the defendants, for insurance against loss or damage by fire upon certain merchandise, which was then the property of said W. M. Company, consisting of scythes contained in a building of the said W. M. Company, occupied for storing, blacking, bluing, and packing scythes, in said city of That the defendants, on said day, months from the said day, in dollars, for the consideration of dollars agreed to insure said stock for the sum of premium to be paid by plaintiff, and that the said defendants would execute and deliver to the said W. M. Company a policy of insurance in the usual form of policies issued by them, the said defendants, for the sum of dollars, for the term of months from the said day. III. That the said W. M. Company then and there paid to the defendant said premium, to wit, 1This is adapted from the complaint in Rockwell v. Hartford Fire Ins. Co., 4 Abb. Pr. (N. Y.) 179. It was held in that case that where there is an agreement to insure and to deliver a policy, and a loss occurs before the delivery of a policy, it is not necessary that the insured should proceed to compel the delivery of a policy before he can recover the insurance, but he may maintain an action upon the agreement and the loss, taking judg dollars.2 IV. That it was then and there agreed between the said W. M. Company and the said defendants, that the said insurance in the sum of dollars, should be binding on the part of the defend months from the time of the receipt of day of ants for the term of the said premium, to wit, the 18 and the said defendants then and there, in consideration of the premises, promised and agreed to and with the said W. M. Company, to execute and deliver to it, within a reasonable and convenient time, a policy in the usual form of their policies, insuring the said stock of goods in the sum of dollars against loss and damage by fire, the insurance to commence at the time of the receipt of the said premium, and continue for the said term of months. V. That the defendants, by a policy of insurance issued in usual form (among other things), do promise and agree [here set out legal effect of the contemplated policy as in paragraph III of Form 367,—or, that a copy of the defendants' usual policy of insurance except as to the name of insured, date, amount and term thereof, is hereunto annexed marked "A" and made part hereof]. VI. That after the insurance so made, and after the said promise to execute and deliver a policy in conformity thereto, and within the said term of months, for which the said W. M. day of Company was so insured, to wit, on the 18, the said stock of merchandise in the said building mentioned and intended to be so insured, was damaged and in part destroyed [or, was totally destroyed] by fire; that the true and actual value of said stock of merchandise was dollars; that the same was then and at all times herein mentioned the property of said W. M. Company, and that the said W. M. Company thereby sustained loss and damage to the amount of dollars. VII. That said W. M. Company duly performed all the conditions of said agreement and insurance on their part, and more than sixty days [or, otherwise as required by the policy,] before the commencement of this action, to wit, on or about the 18, gave to the defendants due notice and proof day of 1 Where the complaint averred that the property insured was destroyed by fire on the 20th of May, 1852, and that as soon as possible thereafter, that is to say, on the 24th of May, 1852, the. plaintiffs gave notice thereof to the de of the loss as aforesaid, and duly demanded payment of the said VIII. That no part of the same has been paid. Company duly assigned to this plaintiff the said agreement and insurance, and their claim against the defendants thereon. WHEREFORE [etc., demand of judgment]. 372. On Personal Property Removed During Term. [After alleging the issuance of the policy, etc., as in preceding forms, continue:] IV. That thereafter and on or about the No. No. day of 18 plaintiff removed his said property from said building at street to the [dwelling house built of brick] at street in said city; that defendant was notified of such removal, and on said day indorsed its consent upon said policy, as follows: [set out consent]. [Continue as in preceding forms.] 373. Against Attorney in Fact upon Lloyds Policy Containing a Provision that he Alone shall be Sued.1 A. B., plaintiff, vs. Y. Z., as attorney in fact of and representing M. N., O. P., Q. R. and S. T., defendants. I. That the defendant, at the times hereinafter mentioned, was the general manager and duly authorized attorney for and repre fendants held, that the plaintiffs where a demurrer 1 Adapted from complaint in Leiter v. Beecher, 2 App. Div. (N. Y.) 577, was overruled. Although in that action the defendants were not sued "as" attorneys, and allegations in the complaint when challenged by demurrer admitted their personal liability as principals, the court passed upon the question of the effect of the provision quoted in the form, and held, that the action could senting the underwriters or insurers of property against loss by fire, doing business under the name and style of the " Lloyds of ," whose names are above set forth, with authority to issue policies of insurance in the name of such underwriters. II. That heretofore and on or about the day of 18 the said defendants, acting as the attorney for said underwriters, duly entered into a contract with plaintiff, in which and by which defendant covenanted, promised and agreed, in consideration of the sum of dollars to him paid by the plaintiff as premiums for the insurance herein stated, to insure the property of the plaintiff for the term of years from to against all direct loss or damage by fire to an amount not exceeding dollars in the aggregate, as follows, to wit: [description of property insured; also set forth any conditions in policy required under rules of pleading ordinary fire policies; see preceding forms]. III. It was further agreed that, in case of a loss or damage by fire to plaintiff's said property, the defendant should pay to plaintiff the said sum of dollars or an amount found due and payable under the contract of insurance upon proof to defendant of such fire, loss or damages thereby to plaintiff's said property. IV. [Set forth loss, amount of damage, and proof of loss, as under ordinary policy; see preceding forms.] V. That pursuant to said contract of insurance, it was agreed that the underwriters should pay to plaintiff the said loss in equal proportions, share and share alike. That said contract or policy of insurance contained the following provision: "No action shall be brought to enforce the provisions of this policy except against the general managers as attorneys in fact, and representing all of the underwriters, and each of the underwriters hereby agrees to share the result of any suit so brought as fixing his individual responsibility thereunder." VI. [Lapse of sixty days after proof of loss, and non-payment of amount of loss, as in Form 367.] be sustained against them as attorneys; principals, who would be bound by and the court could fix the total sum the adjudication so far as it fixed the to be paid and apportion it among the amount. |