delivered the opinion of the Court:
The appellant was summoned by Marks, the appellee, to answer as garnishee of Myers, and, a jury being waived, the court rendered judgment against the company. One Morris, of the firm of Goldschmidt & Morris, had taken a stock of ' goods on a debt due the firm, and being doubtful whether his partner, then in Europe, would approve the transaction, he did not mix the stock with that of the firm, but took it to a separate store and there sold it to Myers. Before the sale, however, he had taken out a policy of insurance from the appellant, in his own name, and, when the goods were sold to Myers, the policy was assigned to him, with the written consent of the company indorsed thereon. Myers continued the business for some months, keeping up the stock by new purchases until the time of the fire.
The appellant contests its liability, on the ground that the policy contained the following provision: “ Any interest in property insured, not absolute, or that is less than a perfect title, must be specifically represented to the company, and expressed in this policy in writing, otherwise the insurance shall be void and the company insists that the interest of Morris in these goods was that of a partner only, and as such falls within this clause.
We do not consider it necessary to determine whether the company could have refused payment under this provision, if the goods had been burned before the sale to Myers. It is suffi*484cient for the purposes of this case, to say, that, when the goods were sold, and • the policy was assigned with the written consent of the company, and Myers took, as he undoubtedly did, an absolute and complete title in the goods, it became utterly immaterial to the company what had been the nature or degree of Morris’ interest in this property, as between him and the firm of which he was a member. By the assignment with the consent of the company, Myers was recognized as the assured party, and as the sole owner, as he really was, of the goods. Any privilege to hold the policy void under this clause, which the company may have had as against Morris, was waived.
In substance, though not in' form, a new insurance was granted to Myers. Tillon v. Kingston Mutual Ins. Co., 7 Barb. 573; S. C.,1 Selden, 405; Traders Ins. Co. v. Robert, 9 Wend. 404; Charleston Ins. Co. v. Rose, 2 McMullan, 237. This policy, by its terms, covered the stock of hats, caps and furs, owned by Morris, and “ contained in the frame building, No. 277 Clark street, Chicago.” When the stock was sold to Myers, and the policy was assigned, the insurance applied not only to the stock then on hand, but to the new goods bought to replace those sold in the course of trade, and incorporated into the stock. The identical hats and caps originally insured by Morris might thus be replaced by new ones, to which the policy would attach as a part of the stock, although Morris had never had an interest in them. Hooper v. The Hudson Fire Ins. Co., 15 Barb. 413. There can be no dispute about this, and it shows how immaterial, after the assignment, the degree of Morris’ former interest in the stock had become.
The judgment must be affirmed.