Page:United States Reports, Volume 209.djvu/362

 OCTOBER TERM 1907, bearing that name, has been so ehnocl as to deprive it of its chief value. As is stated by Judge Johnson, in regard to the language used in 56 N.Y., pra, to give this language this eonstructio 'will, in substance, subvert the whole con- tract of reimuranee m hitherto understood. We agree with the court below, that the language.of the elevezth subcllviMon, taken in connection with the fact that it is used in a contract designated by the parties as one .of reinsurance, means that the reinsuring company shall not pay more than its ratable proportion of the actual liability payable on the part of the reinsured, after deducting all liability of other reinsurers. To hold otherwise is to utterly ubvert the originzJ memlng of th term reinsurance and to deprive the contract of its chief value. The lomea are to he payable pro rata with, in the same manner and u!n the same terms and conditions as paid by the reinsured coinparty under its contracts. This means that 'such leeses, payable pro rata, are to he paid upon the'same condition as are the losses of the insurer payable under its ontract.. And the liability of the reinsurer shall not be in excess o the liability of the insurer under its original contracts, after deducting therefrom any and all liability of other re- insurers 'of the contract of the insurer or of any part thereof. It is the ratable proportion for which the other reinsurers are liable, that provision is made for deducting, and the liabi'lity of the insurer means such liability after that deduction, and does not mean there must be an actual payment of such lia- bility by the insurer before it can have any benefit of the con- tract of reinsurance which is made with defendant. Subdivision 10 of the contract does not result in any different conclusion. This subdivision does not and cannot mean that there is to be no liability unless the. reinsured should pay the loss sus- tained. The reinsured company under il provisions is bound to forward to the reinsuring company a statement of the date and the probable amount of loss or damage, and it is provided that after the reinsured company shall have adjusted, accepted

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