Page:United States Reports, Volume 209.djvu/359

 09 u.S. Opinion of the Court. that clause the plaint/ff in error contends that te general rule is altered, and that unless the reinsrued has paid over the money on account of the lo, to the original insured, the rer. insurer, is not bound to pay under this particular contract of reinsurance. Language somewhat like that used in the elev- enth subdivision has been construed in other cases. In B/. stons v. Allemannia Fire Insurance Company, supra, the lan- guage used was "loss,  any, payable pro rata, and at the sarhe time with the reinsured." The Court'of Appeals of New York held that the first part of the clause relieved the defendant from paying the full amount of the loss and made it liable only for its pro rata share, so that the defendant's reinsurance being for hal/ the loss, the defendant was only held liable to pay half the lo. Continuing, the court said (p. 107): "In regard to the latter branch of the clause in question, which says that the lo is payable 'at the same time with the reinsured,' it is not possible to conclude from it that actual payment by the reinsured is, in fact, to precede or to accompany payment by the reinsurer. It looks to the time of payability and not to the fact of payment. It has its operation in fixing the same period for the duty of payment by the reinsurer as was fixed for payment by the reinsured. To give it the construction con- tended for by the defendant would, in ubtance, subvert the whole contract of reinsurance as hitherto undemtood in this State." In. Ex pae Norwood, 3 Biss. 504, a clause in the reinsurance policy stated that "lass, if any, payable at the same time and 'pro rata with the. insured," and it was held that such ]anyage simply gives to the company the benefit of any defense, de- duction or equity which the first insurer may have, making the liability of the reinsured the same as the orirl insured. It does not limit such liability to what the orinl insurer may have .paid or be able to pay. Speaking of his clause, Judge .Blodgett said: "The reinsbring company .is to have the benefit of any de- ductionby reson of other insurance or lvage, that the

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