Effect of falsity. Materiality. Application of provi. sions of this article. When the representation, whether affirmative or promissory, is made with an intent to deceive, the fraud, in all cases, vitiates the contract. When the falsity of the representation is accidental, if the representation is wholly false, or if it was partially false at the time when made, or at the commencement of the risk, the insurer is exonerated; but when the policy has attached, and the representation is falsified by a subsequent event, such accidental falsity does not render the policy void in its origin. S1397. If a representation is false in a material' point, whether affirmative2 or promissory,' the injured party is entitled to rescind the contract from the time when the representation becomes false. 3 1 A certain class of representations in marine insurances e. g., as to the inception of the risk—are held to be 2 Duer Ins., 680. This Bilbrough v. Metropolis Ins. Co., 5 Duer, 587. See the review of cases on this point, 2 Duer Ins., 749–769. $1398. The materiality of a representation is determined by the same rule as the materiality of a concealment. $ 1399. The provisions of this article apply as well to a modification of a contract of insurance as to its original formation. SECTION 1404. Insurance by part owner. 1405. General terms. 1406. Successive owners. 1407. Transfer of the thing insured. 1408. Open and valued policies. 1410. Valued policy, what. 1411. Running policy, what. 1412. Effect of receipt. 1413. Agreement not to transfer. what. $1400. The written instrument, in which a con- Policy, tract of insurance is set forth, is called a policy of insurance. S 1401. A policy of insurance must specify: What must be specified 1. The parties between whom the contract is made; in a policy. 2. The rate of premium; 3. The property or life insured ;1 4. The interest of the insured in property insured, if he is not the absolute owner thereof;" 5. The risks insured against; and, 6. The period during which the insurance is to continue. 1 Phillips on Ins., § 415; Cheriot v. Barker, 2 Johns., 346, 351. 'This provision is contrary to the common law (White v. Hudson River Ins. Co., 7 How. Pr., 341; Crowley v. S1402. When the name of the person intended to be insured is specified in a policy, it can be applied only to his own proper interest. Kemble v. Rhinelander, 3 Johns. Cas., 134, and see 302. Whose incovered. terest is $1403. When an insurance is made by an agent Insurance or trustee, the fact that his principal or beneficiary is by agent or trustee. the person really insured may be indicated by describing him as agent or trustee, or by other general words in the policy. S1404. To render an insurance, effected by one partner1 or part owner,2 applicable to the interest of his copartners, or of other part owners, it is necessary that the terms of the policy should be such as are applicable to the joint or common interest. 1 Graves v. Merchants' Ins. Co., 2 Cranch, 440; Pearson v. Lord, 6 Mass., 81; Turner v. Burrows, 5 Wend., 541; 3 Kent Com., 258. Toomey v. Bedford Ins. Co., 8 Metc., 348; Finney v. $ 1405. When the description of the insured in a policy is so general that it may comprehend any person, or any class of persons, he only can claim the benefit of the policy who can show that it was intended to include him. Newson v. Douglass, 7 Harr. & Johns., 451; Seanian v. S1406. A policy may be so framed that it will inure to the benefit of whomsoever, during the continuance of the risk, may become the owner of the interest insured, This provision is new. S 1407. The mere transfer of a thing insured does not transfer the policy, but suspends it until the same person becomes owner of both the policy and the thing insured. 2 Pars. Mar. L., 42; Hooper v. Hudson River Ins. Co., 17 N. Y., 428. S1408. A policy is either open or valued. S1409. An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. 3 Kent Com.. 272. icy, what. 1410. A valued policy is one which expresses on Valued pol its face an agreement that the thing insured shall be valued at a specified sum. Harris v. Eagle Fire Ins. Co., 5 Johns., 368; Laurent v. policy, S1411. A running policy is one which contem- Running plates successive insurances, and which provides that what. the object of the policy may be from time to time defined, especially as to the subjects of insurance, by additional statements or indorsements. receipt. § 1412. An acknowledgment in a policy of the Effect of receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid. N. Y. Central Ins. Co. v. National Pro. Ins. Co., 20 Barb., S1413. An agreement made before a loss, not to transfer the claim of a person insured against the insurer, after the loss has happened, is void. Goit v. National Protection Ins. Co., 25 Barb., 189; see Agree ment not ARTICLE VII. WARRANTIES. SECTION 1414. Warranty, express or implied. 1415. Form. 1416. Warranty must be in policy. 1417. Past, present and future warranties. 1418. Warranty as to past or present. 1419. Warranty as to the future. 1420. Performance excused. 1421, 1422. What acts avoid the policy. Warranty, express or implied Form. Warranty must be in policy. Past, present and S 1414. A warranty is either express or implied. S1415. No particular form of words is necessary to create a warranty. S1416. Every express warranty, made at or before the execution of a policy, must be contained in the policy itself, and another instrument, whether upon the same paper or not, cannot be referred to as making a part of the policy for this purpose, even by agreement of the parties. By the existing law, warranties may be gathered from other instruments referred to by the policy as forming a part of it (Chaffee v. Cattaraugus Co. Ins. Co., 18 N. Y., 376; Murdock v. Chenango Co. Ins. Co., 2 id., 210; Jennings v. The same, 2 Den., 75). A statement made in a paper referred to by the policy, but not made a part of it, is not a warranty (Wall v. Howard Ins. Co., 14 Barb., 383; affirmed, see 17 N. Y., 197). This change is recommended in pursuance of the suggestion in Chaffee v. Cattaraugus County Mutual Insurance Company, 18 N. Y., 376. S 1417. A warranty may relate to the past, the warranties. present, the future, or to any or all of these. future Warranty as to past See Ang. on Ins., 187-195. S1418. A statement in a policy, of a matter relat or present. ing to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. Warranty as to the future. Perform ance ex cused. Fowler v. Ætna Ins. Co., 6 Cow., 673; Barker v. Phoenix S 1419. A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place. Murdock v. Chenango Mutual Ins. Co.. 2 N. Y., 210; Bilbrough v. Metropolis Ins. Co., 5 Duer, 587. S1420. When, before the time arrives for performance of a warranty relating to the future, a loss insured against happens, or performance becomes |