The opinion of the court was delivered by: EDELSTEIN
1. That the plaintiff is a citizen of the State of Illinois and the defendant Rosenzweig is a citizen of the State of New Jersey. The complaint was dismissed by consent as to Anthony Garcia, a citizen of New Jersey, the only other defendant served.
2. Continental Casualty Company issued an automobile liability policy, bearing number CA4688898, to Bertram Hughes covering a Buick Sedan, 1946 model with serial number 14517954 with policy limits of $ 10,000 for injury to one person involved in an accident and $ 20,000 for injuries to more than one person and $ 5,000 for property damage, the policy being January 10, 1947 to January 10, 1948.
3. On September 13, 1947, the aforesaid policy was endorsed to cover the interest of Albert I. Roenzweig, one of the defendants herein, who had purchased the aforementioned Buick automobile.
4. On or about December 12, 1947, a renewal automobile liability policy was transmitted by plaintiff's agent to Albert I. Rosenzweig at his residence in New Jersey for the policy period January 11, 1948 to January 11, 1949, covering the same Buick automobile and with the same limits.
5. The renewal policy bearing No. CA4575546 was not requested by the defendant Rosenzweig or anyone on his behalf and he concedes that at the time that he received said policy at his home he did not intend to accept it, did not intend to be insured with the Continental Casualty Company for the period January 11, 1948 to January 11, 1949 and he, at the time of the receipt of said policy, did not intend to pay the premium of $ 54.65 which was called for in a bill received with said renewal policy.
6. Before January 10, 1948, Rosenzweig had requested his brokers, E. & J. S. Harris, with offices at 80 Maiden Lane, New York, New York to obtain a policy of automobile liability insurance for the aforementioned Buick and for the period January 10, 1948 to January 10, 1949.
7. A policy was obtained by the aforementioned brokers for Rosenzweig covering the aforementioned Buick for the period January 10, 1948 to January 10, 1949, with limits of $ 10,000 for each person and $ 20,000 for each accident from the Fidelity & Casualty Company of New York and said policy bears No. a 730270.
8. On January 15, 1948, the aforementioned Buick of Rosenzweig and he, as the driver thereof, were involved in an accident in New York City.
9. Shortly after the accident of January 15, 1948, Rosenzweig notified his aforementioned broker of the accident.
10. By notice dated February 5, 1948, the plaintiff advised Rosenzweig that it desired to avail itself of the privilege of cancellation of the policy held by him with the Continental Casualty Company and that said policy was cancelled by virtue of said notice as of February 13, 1948.
11. Said cancellation notice sent by the plaintiff to the defendant Rosenzweig further stated that the policy had earned as premiums, up to the effective date of cancellation, the sum of $ 4.95 and requested that said sum be remitted at once.
12. On February 9, 1948, the defendant Rosenzweig paid to the plaintiff, the earned premium of $ 4.95 demanded by the plaintiff in its notice of cancellation dated February 5, 1948.
13. The defendant Rosenzweig sent and the plaintiff received, by registered mail, a written notice of the accident aforesaid ...