#### The Yonkers and New York Fire Insurance Company, plaintiffs, *vs.*The Hoffman Fire Insurance Company, defendants.

1. An inaccurate description will not necessarily defeat an instrument; and it may be corrected by construction, if there is enough besides to identify the place, and thus supply the means of making the correction; or where the instrument, as a whole, shows, .certainly, that it was an error, and also shows, with equal certainty, how the error may and should be corrected.

2. These general rules apply to the contract of. insurance; and if an error occurs in the policy, in describing, the location of the property insured, extrinsic evidence may be let in, to identify the place.

8. In an action upon a policy of re-insurance, it was objected, on the trial, that there was a variance between the complaint and the policy; the complaint alleging that the property was situated between Meade and *Ash*streets, whereas the policy described it as situated between Meade and *Arch*streets. *KM*that the objection of variance was properly overruled; *Arch*street, as erroneously written in the policy, being neither a necessary, nor a material part of the description; and it could be rejected, and the description would yet be sufficient to designate the locality of the subject insured.

4. The contract of re-insurance is totally distinct from, and unconnected with, the primitive insurance, and the re-insured, in order to recover against the re-insurer, must prove the extent of the loss, in the same manner as the original insurer must have proved it against him.

6. Although the insurable interest of the re-insured is sufficiently shown by proof that they themselves were re-insurers of the original insurers, yet as. the contract is not a wager, but an indemnity, before there can be a recovery, a loss of the subject insured must be shown.

6. No distinction exists between policies of re-insurance and other or first policies, in respect to the nature or extent of the proof required. Before re-insurers can recover, they must show that they have paid a valid claim; which can only be done by showing that the primitive insurers had a risk upon the subject insured, and that such subject was destroyed.

7. Preliminary proofs are not evidence *in chief,*except to show a compliance with a condition in the policy. They are not evidence of the loss.

(Before Monell, Garvin and Jones, JJ.)

Heard and decided May —, 1868.

Exceptions ordered to be heard in the first instance at the general term.

The action was upon a policy of *re-insurance.*The plaintiffs re-insured the Insurance Company of North *317America, in the sum of $5000, on refined petroleum, “ contained in McHenry’s yard, situate on the south side of Dickerson street, east of Front street, between Mead and *Ash*streets, Philadelphia.” Subsequently, the defendants re-insured the plaintiffs, in the sum of $2500, by the following description: “ On refined petroleum contained in McHenry’s yard, situate on the south side of Dickerson street, east of Front street, between Mead and *Arch*streets, Philadelphia.”

A loss was alleged to have occurred, and the plaintiffs, as re-insurers of the Insurance Company of North America, paid such company the sum of $4815.30 in full discharge thereof. ■ They gave notice of the loss to the defendants and demanded payment of the amount insured.

Hpon the trial it was objected that there was a variance between the complaint and the policy of the defendants. The complaint alleging that the property was situated between Mead and *Ash*streets, whereas the defendants’ policy described it as situated between Mead and *Arch*streets. It was proved that “ McHenry’s yard” was in the extreme southeast of Philadelphia; Dickerson street was the last street laid out. running east and west, and McHenry’s yard was south of that street. Front street is west of it, the only leading street west of it; the other streets are not laid out, and are merely known on paper. The place was known as “McHenry’s yard.” A witness who testified he had always resided in Philadelphia, said he knew of no other place in Philadelphia known as McHenry’s yard, and it was well known by that description. The street on the east of Me Henry’s yard was known as *Ash*street; there is nothing between it and the river. *Arch*street is about two miles north of McHenry’s yard and runs *parallel*with Dickerson street. *Ash*street runs north and south, and *Arch*street east and west. It was further proved that the description put in the defendants’ policy was furnished by the plaintiffs.

There was no other proof of loss than what was claimed *318to be contained in the admission in the defendants’ answer, and the actual payment to the Insurance Company of North America. The allegation in the complaint is: “ That the plaintiffs have given due notice to the defendants of the said loss by fire, and have furnished them with the proof of the loss thereby sustained, and of the payment of the said insurance by the plaintiffs as herein above stated.” The answer of the defendants denied that the plaintiffs gave 66 due notice of said alleged loss.” The allegation in a former part of the complaint that the property “ so insured was injured and destroyed by fire,” was also denied by the defendants. An agent , of the plaintiffs testified that he knew of a fire occurring in McHenry’s yard. A claim was made upon the plaintiffs by the Insurance Company of North America, for the loss, under the policy issued by the plaintiffs, which the agent paid by a draft on the plaintiffs, in favor of the Insurance Company of North America.

A motion was made to dismiss the complaint on several grounds; among others, of variance, and especially, that there was no evidence of an insurable interest in the Insurance Company of North America, or that there was a loss. The motion was denied, and the defendants excepted.

• A verdict was directed for the plaintiffs, to which the defendants also excepted.

*John M. Mason,*for the plaintiffs.

*W. H. Peckham,*for the defendants.

By the Court, Monell, J.

The objection, that the location of the subject of the insurance being differently described in the. two policies, rendered the defendants’ policy void or voidable, was, I think, properly overruled.

An inaccurate description will not necessarily defeat an instrument; and it maybe corrected by construction, if there is enough besides to identify the place, and thus sup*319ply the means of making the correction; or, where the instrument as a whole, shows certainly, that it was an error, and also shows with equal certainty how the error may and should be corrected. (2 *Pars. on Cont.*27.) These general rules apply to the contract of insurance, *(Robertson*v. *French, 4 Fast,*130;) where Lord Ellenborough says: *(p.*135,) “ the same rules of construction which apply to all other instruments apply equally to this instrument of a policy of insurance.”

There are also other rules of construction of contracts which might be summoned to the aid of this case; such as the intention of the parties, and the surrounding circumstances, *(French*v. *Carhart, 1 Comst.*96,) as well as the immateriality of the representation or description. *(Stebbins*v. *Globe Ins. Co.,*2 *Hall,*632.)

Applying the rules I have stated to the policy in this case, the error in description may be corrected by construction. The extrinsic evidence, properly let in, *(Stebbins*v. *Globe Ins. Co., supra,)*to identify the place of the subject insured, shows how the error may be corrected, or rather disregarded, without prejudice or injustice to the defendants.

The description in the policy commences with “ contained in McHenry’s yard.” The evidence shows that such yard, by that designation is *well known*and is the only yard thus designated in the city of Philadelphia. Then follows: “situate on the south side of Dickerson street,” describing accurately the street and side of the street, upon which “McHenry’s yard” was situated. Then “east of Front street ” is another correct aid to the exact location of the yard.

Had the description stopped here, no question of course could have arisen, for it is entirely accurate. But it goes farther, and states “ between Mead and *Arch*streets;” and the evidence shows that Arch street is *two miles*north of McHenry’s yard, and runs *parallel*with Dickerson street.

*Arch*street which was intended for *Ash*street, as it is written in the plaintiffs’policy, is neither a necessary, nor a *320material part of the desdription. It could be rejected and the description would yet be sufficient to designate the locality of the subject insured. It was unnecessary, for the description was perfect without it; it was immaterial, because, as admitted by the appellants’ counsel, the insurer knew nothing of the location of the property except from the terms used, and relied solely upon the representations of the insured.

Without pursuing the subject farther, I have no doubt, that the objection of variance was properly overruled.

But, I think, the case must fail for want of sufficient proof, of a loss of the subject insured. The plaintiffs offered no direct proof of any loss. The plaintiffs’ policy re-insured the Insurance Company of North America “ against loss or damage by fire to the amount. of five thousand dollars, on refined petroleum.” It was not shown that the latter company had any risk upon the subject described, or that such subject had been destroyed. It was admitted by the plaintiffs’ counsel, that in actions upon ordinary policies of insurance, the insured must show a loss of the subject insured; and it was also admitted that the preliminary proofs were not evidence of such loss. Such undoubtedly is the rule. *(Howard*v. *City Ins. Co,,*4 Denio, 502. *Sexton*v. *Montgomery County Mut. Ins. Co.,*9 *Barb.*191. *Newmark,*v. *L. and S. Fire Ins. Co.,*30 *Mo. Rep.*160.) But it is insisted, that the plaintiffs being themselves insurers, it was only necessary to show the payment of a loss, and that the burden of showing that the loss was wrongfully paid, was upon the re-insurer. Such I do not understand to be the law.,

The contract of re-insurance is totally distinct from, and unconnected with, the primitive insurance, and the re-insured, in order to recover against the re-insurer, must prove the extent of the loss in the same manner as the original insured must have proved it against him. ■ (1 *Arn. on Ins.*288. *Hastie*v. *DePeyster,*3 *Caines,*190.) And it is of no importance that the plaintiffs were themselves re-*321insurers. Both policies were against “ loss on refined petroleum,” and the plaintiffs must show a valid claim for loss against themselves on the article insured. Chief Justice Kent says, in *Hastie*v. *De Peyster, supra, (p.*195,) “ if the re-insured proves the original claim against him to have been valid when he resorts over to the re-insurer, he then makes out a case for indemnity.” *(N. Y. State Marine Ins. Co. v. Protection Ins. Co.,*1 *Story,*458.)

No doubt the insurable interest of the plaintiffs was sufficiently shown, by proof that they themselves were re-insurers of the Insurance Company of North America. The contract is not a wager, but an indemnity. *(Bowery Ins. Co.*v. *N. Y. Ins. Co.,*17 *Wend.*359. *Mut. Safety Ins. Co.*v. *Hone, 2 N. Y. Rep.*235.) But before thei;e can be a recovery, a loss of the subject insured must be shown.

I have not found any case which sustains the distinction, attempted to be drawn by the plaintiffs’ counsel, between policies of re-insurance and other or first policies, in respect to the nature or extent of the proof required. I think I have shown, and fortified the position by authority, that no such'distinction exists. Therefore, the whole argument, founded upon the supposed admission of the defendants in not objecting to the sufficiency of the preliminary proofs, falls, for I have already shown that such preliminary proofs are not evidence in *chief,*except to show a compliance with a condition in the policy.

■ Before the plaintiffs can recover, therefore, they must show that they paid a valid claim, which I suppose can be done only by showing that the Insurance Company of North America had a risk upon the subject insured, and that such subject was destroyed. As both these facts may be shown, there should be a new trial.

Exceptions sustained and a new trial ordered, with costs to abide the event.