249 A.D. 675 | N.Y. App. Div. | 1936
Appeal from a judgment ip favor of the plaintiff and against the defendant entered upon the verdict of a jury. The action was brought on two fire insurance policies issued by the defendant to the plaintiff, to recover the damages sustained by the plaintiff as a result of fire in its brush factory in the city of Troy. The policy provided and the defendant set up in its answer that the company should not be hable for loss or damage incurred: “ (b) while the hazard is increased by any means within the knowledge or control of the insured; or * * * (d) while there is kept, used or allowed on the described premises * * * explosives, benzine, gasoline, naphtha or any other petroleum product of greater inflammability than kerosene oil.” The defendant alleged that at the time the fire occurred there was kept and used on the described premises the said prohibited articles which caused the fire damaging said premises and that the hazard of fire was increased by reason of said products being kept upon the premises. The defendant further alleged that the fire which damaged the property was knowingly and intentionally caused or procured to be caused by the acts or and by or through the proeurance of this plaintiff. The defendant further alleged that the plaintiff concealed certain facts, misrepresented circumstances concerning the subject of insurance and the loss and was guilty of false swearing in the proof of loss on an examination. That by reason thereof the policy was null and void. The burden of proof was on the insurer to establish a breach of the conditions in the policy. An examination of the record shows that there was a question of fact which was submitted to a jury and that the jury has found against the defendant, that is by the verdict the jury has said that the defendant has failed to make out a defense on the subject of gasoline. It has failed to establish that the plaintiff was guilty of fraud in false swearing in the examination of the proof of loss. The jury by the verdict in favor of the plaintiffs has decided that the plaintiff sustained by a clear preponderance of evidence its right to recover its loss by the fire in question under the policies issued by the defendant. An examination of the record shows that there is ample evidence to sustain the verdict and that there were no errors committed that require a reversal of the judgment. Judgment and order unanimously affirmed, with costs. Present'—-Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.