116 Misc. 679 | N.Y. Sup. Ct. | 1921
The complaint in this action alleges that the defendant is a domestic insurance corporation, doing business at Alfred, N. Y., and that the defendant “ Milo O. Gilbert is named in said policy of insurance hereinafter referred to as a payee thereunder and may claim to have some interest in said policy of insurance, which interest, however, if any, is subsequent to that of plaintiff.” Both of these allegations are admitted. The complaint further alleges that the plaintiff, s>n or about the 17th day
The answer of the defendant puts in issue the alleged mistake in the date of the policy, or of intended fraud, and the evidence of the plaintiff clearly fails to establish that there was any agreement as to the exact term for which the policy was to be issued. The plaintiff herself testifies that she had nothing to do with the negotiation for the policy; that her husband did all the business, and the husband testified on direct examination that a few days before the 17th day of June, 1920, he had a conversation with Frank H. Oaks, agent for the defendant, apparently for the purpose of soliciting insurance risks, in which the witness told Mr. Oaks that one Gilberts had a mortgage upon the premises, and that Gilberts had asked the witness to have some insurance placed upon the property, as a previous policy had run out; that Oaks promised the witness that “ the first time I get up that way in a day or two I will look at it.” He says this was the substance of the conversation; that subsequently and a
The above constitutes the substance of the direct testimony as to the alleged error in the date of the policy or the intended fraud of the defendant. Upon cross examination the witness said, in reference to his original talk with Mr. Oaks in regard to the insurance, that “ Mr. Gilberts had written to me and said that the policy which he had on the buildings would run out and wanted me to get out some more insurance right away,” which is quite different from the direct testimony, and in no wise tends to show that there was any agreement that the policy in suit should “ commence at noon upon the 17th day of June, 1920, and to expire at noon on the 17th day of June, 1923,” which was the material fact pleaded and fairly put in issue by the answer. All that the evidence fairly shows is that the plaintiff’s husband asked the defendant’s agent for some insurance, because the mortgagee had told him the other policies “ would run out ” and that he (the mortgagee) wanted some new policies
If there could be any question about the propriety of this decision, the fact that the plaintiff has pleaded full performance of the conditions of the policy, and has failed to establish performance, would be equally fatal to the cause of action asserted. The policy in evidence provides that “ If fire occur the insured shall give immediate notice of any loss thereby in writing to this company. * * * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and all others in the property,” etc. It is conceded that there was no notice of the fire given to the defendant until a certain letter by plaintiff’s attorneys upon the 26th day of July, 1920, and that there were no formal proofs tendered until the seventeenth day of September, seventy-nine days after the fire, and there is no suggestion that the defendant had extended the time in writing as required by the policy, or that it had taken any action which justified the plaintiff in assuming that there was an intention of waiving this requirement of the contract. The policy upon which the plaintiff’s cause of action is based provides that it “ is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on the back thereof, which are hereby specifically referred to and made a part of this policy, * * * and no officer, agent or other representative of this company shall have power to
In the companion case of Gilbert v. Knapp (including the Protective Co-Operative Fire Insurance Company), tried in connection with the above case, it is conceded that there was a valid policy in existence at the time of the fire; that the plaintiff, Milo O. Gilbert, filed proofs of loss sufficient to protect his interests as mortgagee, and that, in so far as he is concerned, he
An interesting brief has been filed in behalf of Silas T. Crocker, owner of a judgment against Morris E. Towne, who was the owner of the premises formerly owned by Edna M. Anderson, at the time of the commencement of this action, last above considered. Of the claim therein urged it may be said that the insurance policy was payable to the plaintiff Milo O. Gilbert “ as his mortgage interest may appear,” and as we have held that Edna M. Anderson was not entitled to recover anything as against the insurance company, it would seem to follow that Morris E. Towne had no rights in the insurance moneys, and that nothing passed to Silas T. Crocker by the assignment of the judgment against Mr. Towne by Sarah J. Wright, in so far as the insurance in question is concerned. Milo O. Gilbert’s interest in the insurance moneys was preserved by his filing of proofs of claim, but this did not extend beyond what was necessary to preserve his mortgage interest in the entire property as it stood before the fire, and the insurance company owes nothing beyond his interest in excess of the sum realized on the sale of the property.
Costs should be allowed the Fidelity Co-Operative Fire Insurance Company against Edna M. Anderson,
Judgment accordingly.