Zurich General Accident & Liability Insurance v. Union Ferry Co. , 203 A.D. 168 ( 1922 )

Per Curiam:

The evidence in this case presents a question of fact as to the nature of the contract between the parties to the action.

Admittedly, plaintiff issued and delivered to the defendant a combination policy covering liability under the Workmen’s Compensation Law, and also other employers’ liability. Defendant insists that the contract ordered was to cover its liability under the Workmen’s Compensation Law and that alone. It was for the jury to determine whether defendant’s claim was true. If this be true, there was no contract so far as the additional insurance was concerned, and defendant would then be entitled to a rescission of that portion of the policy issued, unless defendant was negligent in failing to discover the error in the policy. (Curtis v. Albee, 167 N. Y. 360, 365; Salomon v. North British & M. Ins. Co., 215 id. 214, 218.)

Whether defendant was negligent in this respect should also have been left to the jury. (Hay v. Star Fire Ins. Co., 77 N. Y. 235; International Ferry Co. v. American Fidelity Co., 207 id. 350.)

The decisions of the United States Supreme Court in Southern Pacific Co. v. Jensen (244 U. S. 205) and Knickerbocker Ice Co. v. Stewart (253 id. 149) did not render the contract between the parties void. Defendant was at all times protected from liability, and if the effect of those decisions removed defendant’s employees from the application of the Workmen’s Compensation Law, still the risk which existed before was not destroyed. (New Amsterdam Casualty Co. v. Olcott, 165 App. Div. 603.)

Defendant has received the benefit of the policy issued and must pay the premiums as therein specified for the insurance furnished under the Workmen's Compensation Law; whether it shall pay more depends upon the findings of the jury upon the questions to be submitted as here indicated.

The judgment and order should be reversed on the law and a new trial granted, with costs to abide the event.

Blackmar, P. J., Manning, Kelby and Young, JJ., concur; Kelly, J., dissents and reads for affirmance.