(dissenting.) I am of opinion that upon the true construction to be given to article 18 of the by-laws of the defendant, attached to the plaintiff’s policy of insurance, the plaintiff is not entitled to recover.
1. The plain object and intent of that article was to protect the company against double insurance without its consent ; because in the event of such insurance there might be a strong temptation to fraud, in the policy-holder. The article was obviously designed to cover all possible cases of double insurance, and with this manifest intent of the parties before our eyes, I think we ought to give such a construction to the contract as will effectuate that intent, if we can do so without doing violence to the language employed.
2. And I think this can be done. The words are, “ In case any other policy of insurance has been or shall be issued covering the whole or any part of the property insured by this company,” the policy shall be void. Mow while it is true that at the time the defendant’s policy was issued, no other policy had been issued then covering the property insured by the defendant, it is equally true that a policy had been issued which, without alteration of its terms, thereafter covered the property insured by the defendant. In other words, certain property previously insured in a Troy company became by removal into the store mentioned in the defendant’s policy covered by the defendant’s policy. I think the clause in question, without any violence to its language or obvious intent, can and should be read as if it had been written “ In case any other policy of insurance has been issued now or hereafter covering the whole or any part of the property insured by this company.”
*306[Albany General Term, May 5, 1862.Hogeboom, Peckham and Killer, Justices.]
3. Again; take the other alternative : “ In case any other policy of insurance shall be issued, covering the whole or any part of the property insured,” &c. Was not the Troy policy, so far as the property insured by the defendant was concerned, though dated before the defendant’s policy, in effect issued afterwards; that is, did it not take effect afterwards upon the property insured by the defendant ? Too narrow a construction should not be given to the word issued. As used in this clause it is synonymous with “ take effect,” or become- operative;” and if this meaning be applied to it, it plainly covers the present case.
4. In a subsequent part of the same article, it is provided that “ in case of loss or damage of property upon which such double insurance subsists,” the defendants’ company shall in the event of consent being given to the additional policy, not be liable for more than its proportional part of the loss. How here plainly a double insurance subsists at the same moment, and this was the very contingency designed to be provided for by this article.
5. -In considering this question I have of course assumed, as did the referee and the counsel on both sides, that' by the removal of the goods all the property was protected by both policies if valid. (Hooper v. Hudson River Fire Insurance Co., 17 N. Y. Rep. 426.) At all events the new goods were, and no discrimination has been made between them, in the referee’s report. Hence whether or not a portion of the goods only was covered by double insurance, a new trial is, if I am right, essential to adjust accurately the rights of the parties,
I am of opinion that the judgment entered upon the report of the referee should be reversed and a new trial granted, with costs to abide the event.
Judgment affirmed.