Opinion
September Term, 1851
N. Hill, Jun., for appellant.
S. Beardsley, for respondent.
The case of Murdock v. The Chenango County Mut. Ins. Co., (2 Comst. R. 210,) is decisive against the claim of the respondents to recover in this action for their own benefit. The only question open for examination and decision, is the right of Ketcham, the assignee of the policy, to recover, in the names of the respondents, the amount of his interest; and that is scarcely an open question.
The principle established by the supreme court, in the case of Robert v. The Traders' Ins. Co. (9 Wend. 404,) is, that no act of the assured, after an assignment of the policy with the assent of the insurer, shall impair the rights of the assignee. This case afterwards came in a different form before the court for the correction of errors, and that court recognised, approved, and substantially affirmed, the judgment of the supreme court. That case has also been twice noticed by this court, and each time with approbation. ( Conover v. Ins. Company, 1 Comst. R. 293; Murdock v. The Chenango County Mut. Ins. Co., 2 ibid. 218, 219.)
The assignment of a policy of insurance, with the assent of the insurer, creates new and mutual relations and rights between the assignee and the insurer, which, on the plainest principles of law and justice, cannot be changed or impaired by the acts of a third person, over whom the injured party has no control.
In my opinion, the sale and transfer, by one of the respondents to the other two, of his right and interest in the property insured, after the policy was assigned to Ketcham, with the assent of the appellants, does not affect his right to recover.
Judgment of the supreme court modified, by changing the amount from the sum of $2,687.15; to $2,146.52.