Statement of case.

perty to the plaintiff; and on April 15th, 1867, he delivered to the plaintiff the policy with the following assignment indorsed thereon:

"For value received I hereby assign, transfer, and set over to William H. Shearman all the right, title, and interest in and to the within policy, and all benefit and advantage to be derived therefrom.

"Dated at Wilmington, N. C., the 15th day of April, 1867. "LEWIS J. SHEARMAN."

The companies simultaneously consented as follows: "The insurance companies, within named, hereby consent that the interest of L. J. Shearman, in the within policy, be assigned to William H. Shearman, subject to all the terms and conditions therein mentioned and set forth.

"Dated at Wilmington, N. C., the 15th day of April, 1867. "DE ROSSETT & Co., Agents.”

The property was totally destroyed by fire in the night of June 4th, 1867. Lewis J. Shearman, the original assured, remained the occupant, a Mr. McGreal living with him. At the time of the fire Lewis J. Shearman was on his way back to Wilmington from taking his family to Brattleboro. Mr. McGreal was living in the house; and during Mr. Shearman's absence a Mr. Brown was taking care of the house for him. Of this the companys' agents were notified. Defendant moved for a nonsuit upon the grounds among others:

1. That the policy was a wager policy, having been renewed on March 21st, 1867, to Lewis J. Shearman, who had previously, on March, 4th, 1867, conveyed to the plaintiff, and had no insurable interest in the property.

2. That the conveyance to the plaintiff having been prior to the consent of the companys', the policy became void, and was not revived by the companys' subsequent consent. 3. That there was a change of possession.

The jury gave a verdict for the amount of the policy.

Opinion of the Court, per CHURCH, Ch. J.

S. Hand, for appellant. L. J. Shearman's insurable interest ceased on assignment of property, and the renewal was a wager policy. (1 Parsons on Marine Ins., 56; Fowler v. N. Y. Ind. Ins. Co., 26 N. Y., 422; Parsons on Marine Ins., vol. 1, p. 156; Ruse v. Mut. Ins. Co., 23 N. Y., 516; Peabody v. Washington Co. Ins. Co., 20 Barb., 340; Gray v. Hook, 4 N. Y., 449; Bell v. Leggett, 7 id., 176; Springfield Ins. Co. v. Allen, 43 id., 389.) If he had any insurable interest, it was so disproportioned to amount of insurance as to make policy void. (1 Parsons on Ins., 155; Heath v. N. Y. Mut. Ins. Co., 8 Bosw., 557.) No assent to the transfer of the property was shown. This rendered policy void. (Smith v. Sar. Mut. F. Ins. Co., 3 Hill, 518.) The policy having become void, nothing but an express contract could revive it. (Baker v. Un. L. Ins. Co., 44 N. Y., 283; Smith v. The Sar. Co. Mut. F. Ins. Co., 3 Hill, 508; Neely v. The On. Ins. Co., 7 id., 49.) The agent had no power to to waive forfeiture. (Wall v. Home Insurance Co., 8 Bosw., 597.)

Shearman's absence did (Jolly v. Balt. Eq. Soc.,

J. E. Parsons, for respondent. not constitute change of possession. 1 Harr. & Gill, 295; Rafferty v. N. B. Fire Ins. Co., 3 Harrison, 488; Lyon v. Com. Ins. Co., 2 Rob. La., 266.) The consent to the assignment of the policy revived it. (Solms v. Rutgers F. Ins. Co., 5 Abb., N. S., 201, 211; Hooper v. H. R. F. Ins. Co., 17 N. Y., 424; Wolf v. The S. F. Ins. Co., 39 id., 57; Keeler v. U. S. Ins. Co., 16 Wis., 520; Carroll v. Charter Oak Ins. Co., 38 Barb., 402; Howard v. Alb. Ins. Co., 3 Denio, 303.) Shearman had an insurable interest. (Stetson v. Mass. Ins. Co., 4 Mass., 330; Etna Ins. Co. v. Tyler, 16 Wend., 385.)

CHURCH, Ch. J. The points relied upon by the appellants in this court, are the same presented upon a motion for a nonsuit, when the plaintiff rested, and again at the close of the evidence. They are, substantially: 1. That the property,

Opinion of the Court, per CHURCH, Ch. J.

having been transferred without the consent of the company, the renewal of the policy afterward without such consent was void, and rendered the policy a wager policy, void both by statute and common-law. 2. That there was no evidence of a consent on the part of the company, to a transfer of the property to the plaintiff; and 3. That there was such a change of possession of the property as to render the policy void.

The property was transferred to the plaintiff on the 4th of March, 1867, the renewal was made the 21st of March, and on the 15th of April of the same year the policy was transferred to the plaintiff. On the same day the defendant, by its agent, by an indorsement on the back, consented to such transfer of the policy.

It is well settled that the person insured must have an insurable interest in the property (26 N. Y., 422; 23 N. Y., 516); and one of the conditions of the policy is, that if any transfer of the title or possession of the property is made, without the consent of the company, the policy shall be void.

Assuming that when Lewis I. Shearman transferred the property he retained no insurable interest, I cannot assent to the position, that the policy thereby became a wager policy, and void in the sense that it was an illegal contract, and that it could not be revived and restored to life by the act of the defendant. It was void, not for any vice or illegality in the contract itself, but for the reason that there was nothing upon which it could operate. (Howard v. Albany Ins. Co., 3 Denio, 301.) The parties, it is true, agreed that in a certain contingency it should be void; and if a loss had occurred during that period, no action could have been maintained upon the policy, but the happening of the contingency did not impress upon the contract the character of illegality, so that no subsequent agreement could restore it. The case of Gray v. Hook (4 Comst., 449), cited by the learned counsel for the appellant, will serve to illustrate the distinction between a contract valid in its creation, which has become void by an act of the party so that it cannot be enforced, and SICKELS-VOL. I.

67

Opinion of the Court, per CHURCH, Ch. J.

one that is illegal and contrary to public policy. In that case the cause of action grew out of an agreement between the plaintiff and defendant, by which one of them was to withdraw his application for appointment to an office by the governor in favor of the other, upon an agreement to divide the fees. The court very properly held that this agreement was contrary to public policy, and void at common-law, and being thus tainted, no new agreement entered into to carry into effect any of its provisions was valid. The same principle was decided by this court in Woodworth v. Bennett (43 N. Y., 273). But this principle is not applicable to the present case. Here the original contract was lawful and valid; it was not tainted with the vice of corruption or other illegality. It had become void according to its terms, and in that condition it could not be enforced; but it was not beyond resurrection by the act of the parties themselves.

I am aware that there is an intimation, by BRONSON, J., in Smith v. Saratoga County Mutual Fire Insurance Company (3 Hill, 508), that a mere waiver would not revive such a policy. He says: "It is difficult to see how anything short of a new creation could impart vitality to this dead body." He did not, however, intend to decide the question of waiver, and added: "But it is unnecessary to put this case upon the ground that the forfeiture could not be waived;" and then proceeds to show that there had been no waiver.

In 7 Hill, 49, in a similar case, BEARDSLEY, J., said: "Whether a policy, after having become void by the alienation of the property insured, can be restored to vitality by a mere act of waiver on the part of the underwriters, need not now be decided." Precisely what is intended as a "mere act of waiver" is not very clear; but it is probable that both of the learned judges intended to make a distinction, between such an act and an act which would amount to an agreement to revive and continue the contract.

I have been unable to find any adjudged case holding that such forfeiture may not be waived, and such policy revived, by an act from which the consent of the underwriters may

Opinion of the Court, per CHURCH, Ch. J.

fairly be inferred. The authorities in this State and elsewhere are quite decisive that it may be done. (Solms v. Rutgers Fire Ins. Co., 5 Abb., N. S., 201; Howell v. Knickerbocker Fire Ins. Co., 44 N. Y., 276; Wolfe v. Security Fire Ins. Co., 39 id., 51; Hooper v. Hudson River Fire Ins. Co., 17 id., 424; Carroll v. Charter Oak Fire Ins. Co., 38 Barb., 402; Keeler v. Niagara Fire Ins. Co., 16 Wis., 523.)

It is claimed, however, by the counsel for the appellant, that, when the renewal was obtained, the transfer had been made, and that this renewal constituted a new policy, which was void and illegal within the principles before stated. I do not think so. The renewal simply revived the original policy, and continued it with all the virtue which it would have had, for any purpose, if it had not expired. Besides, Lewis J. Shearman had an insurable interest remaining, as lessee and owner of the equity of redemption, which may be deemed sufficient to obviate this objection.

The important question is, whether the forfeiture was waived and the policy revived by the consent of the defendant to the transfer of it to the plaintiff. In the case of an insurance upon goods, it has been held by this court, that a request that the company would consent to an assignment of the policy, was a sufficient notice to them that the party making it had acquired, or was about to acquire, some interest in the goods insured, and was a compliance with the condition of the policy on that subject. (Hooper v. Hudson River Fire Ins. Co., 17 N. Y., 424; Wolfe v. The Security Fire Ins. Co., 39 id., 49.) An assignment of the policy would be useless, for any purpose, unless the assignee had some interest in the subject insured. This interest may be as owner or encumbrancer, but whatever it is, the underwriters by consenting to the assignment, agree to become answerable to the assignee, to the extent of whatever interest he has, and if the whole interest is transferred, the consent is equivalent to an agreement to be liable to the assignee upon the policy as a subsisting operative contract. I see no reason why the same rule should not apply to a policy upon real, as well as