CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, IN JANUARY TERM, 1802. (a) BROCKHOLST LIVINGSTON, Esq. Counsellor at Law, was appointed one of the Judges of the Court, in the last vacation, and took his seat on the 19th January. SMITH THOMPSON, Esq. Counsellor at Law, was also appointed one of the Judges of this Court, and took his seat on the 28th January. THE NEW YORK INSURANCE COMPANY against THOMAS. A policy of insurance was effected on goods from Philadelphia to Hamburgh, dated the 29th May, 1798, at 17 1-2 per cent. "to return 15 per cent. in case an insurance has been effected in Europe." It also contained the following printed clause: "Provided that if the assured shall have made any other assurance upon the premises prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior assurance may be deficient, &c. and shall return the premium on so much of the sum assured as they shall, by such prior assurance, be exonerated from. And in case of any insurance upon the premises, subsequent in date (a) [Old note.] The Reporter regrets that the written opinions delivered by Mr Chief Justice Lewis, and Mr. Justice Livingston, during the period of this volume, have been lost or destroyed, so that he can only express their concurrence with, or dissent from, the opinions of the other judges. Neither Mr. Justice Livingston, nor Mr. Justice Thompson, took any part in the decision of the causes in this term, here reported, as they were argued before they took their seats on the bench. N. Y. Ins. Co v. Thomas. to this policy, the insurer shall be answerable for the full sum subscribed, &c. and be entitled to retain the premium, in the same manner as if no such subsequent insurance had been made." Insurance was also effected on the same goods at Hamburgh, the 19th June, 1798. It was held, that according to the true construction of the written and printed clauses, the insured could not claim a return of premium on account of the insurance at Hamburgh; and that parol evidence to show that it was the understanding and intention of the parties that the policy was to be void in case of a double insurance, was inadmissible. If there be any apparent contradiction in a contract, it is the business of the courts to endeavour to reconcile the whole instrument; and the language which is clear and explicit, must always control that which is obscure or equivocal. Per Kent, J. Parol evidence is to be received in the case of an ambiguitas latens to ascertain the identity of a person or thing, but before the parol evidence is to be received in such case, the latent ambiguity must be made out and shown to the court. Per Kent, J. THIS was an action on a promissory note, for $2801 25, dated the 29th May, 1798, payable *in 9 months, [*2] given to the plaintiffs, for the premium on a policy of insurance on goods of Messrs. Notnagel, Montmollin & Co. of Philadelphia, laden on board the Danish brig Peter, bound to Hamburgh, at the rate of 17 1-2 per cent. The defendant admitted the note, but claimed a set-off of 2436 dollars and 75 cents for a return of premium. The policy contained these written words: "To return fifteen per cent. in case an insurance has been [here was an erasure] effected in Europe." It also contained the following printed stipulation," Provided that if the assured shall have made any other assurance upon the premises prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior assurance may be deficient, &c. and shall return the premium on so much of the sum assured, as they should, by such prior assurance, be exonerated from. And in case of any insurance upon the premises, subsequent in date to this policy, the insurers shall be answerable for the full sum subscribed, without right to claim contribution from such subsequent insurers, and shall be entitled to re tain the premium in the same manner, as if no such subsequent assurance had been made." The defendant proved N. Y. Ins. Co. v. Thomas. that two letters written by Notnagel & Co. to the defendant, were laid before the plaintiffs. The first was dated 21st May, 1798, in which they say, "We intend to send a consignment, &c. to Hamburgh, at which place we have ordered insurance. We wish to insure here also, under condition of annulling the same in case of double insurance." The second letter, dated the 28th May, 1798, says, "Please to order insurance, &c. The above insurance to be made on a premium of 17 1-2 per cent. with condition to return 15 per cent. in case the same should have been previously effected conformably to orders given by sundry opportunities." The defendant further proved, that the insurance was effected, by virtue of these two letters, and that the word "previously” was, at first, inserted where the erasure has been *noted, and on the defendant's objecting, it was struck [*3] out; and that it was the intention of the parties, that the insurance should be void, in case of double insurance. On the 1st of May, 1798, Notnagel & Co. directed, by four different vessels, insurance to be made at Hamburgh. Insurance was effected at Hamburgh; but not till the 19th June, 1798. The plaintiffs underwrote the policy on the 29th May, 1798. The cause was argued at the last term, and two questions were raised for the consideration of the court. 1. Whether, by the true construction of the policy, the written clause must not be understood to refer as well to a subsequent as to a prior insurance at Hamburgh? 2. If not, then whether there be sufficient legal testimony collateral to the policy, which, in judgment of law, gives the contract that extension? B. Livingston, for the plaintiffs. Curia adv. vult. KENT, J. now delivered the opinion of the court. 1. By the true construction of the policy, any other insurance subsequent to the one in question was not to affect it. The language of the contract is plain and decisive. An insurance prior in date was to exonerate the plaintiffs, and entitle the defendant to a return of premium. An insurance sub |