82 N.Y.S. 140 | N.Y. App. Div. | 1903
The action was brought to recover upon a policy of fire insurance, a copy of which is annexed to the complaint. By this policy the defendant insured the plaintiff for a term of one year, from the 23d of July, 1900, against loss or damage by fire in an amount not exceeding $1,000, upon the “following described property, while located and contained as described herein, and not elsewhere, to wit,” $100 on furniture and fixtures ; $850 on stock and materials as dealers in and,manufacturers of cloaks and suits, and $50 on machinery, “ all contained in or attached to the building or additions situate at number 1,583 Third Avenue, in the City of New York, Borough of Manhattan.” The complaint further alleges that on the 28th day of October, 1900, said furniture, etc., embraced and referred to in said policy of insurance was damaged and wholly destroyed by fire,
The answer admits that the defendant issued this policy of insurance as set forth in the complaint, but denies that the furniture, fixtures, cloaks, suits and machinery embraced and referred to in said policy of insurance were either damaged or wholly destroyed by fire, or in any way affected by fire, and denies that the sum of $1,000 or any other sum is now due and owing to the plaintiff from the defendant; and, for a further and separate defense, alleges that there has not, nor at any time during the life of the policy in said amended complaint set forth, been any destruction of or damage to goods by fire in the building or additions situate at 1583 Third avenue, and that the furniture, fixtures, cloaks, suits and machinery embraced and referred to in the amended complaint herein, and in said policy of insurance, were neither damaged nor wholly destroyed by fire at any time while contained in or attached to the building or additions situate at 1583 Third avenue, in the city of New York.
Upon these pleadings the case was brought on for trial. The counsel for the defendant then moved to amend the answer, to which motion the plaintiff assented, whereupon the court amended the answer by adding for a further and separate defense that the defendant, on or about the 23d day of July, 1900, issued its policy of insurance, No. 266,899, which policy covered certain stock of furniture, fixtures, cloaks, suits and machinery referred to in said policy of insurance and located at 1583 First avenue, in the city of New York ; and long before the date alleged in the amended complaint, as the time of the fire set forth therein, the plaintiff duly surrendered the said policy of insurance No. 266,899 so issued to him by the defendant on July 23, 1900, for cancellation, and did request, it to cancel and terminate it; that by virtue of such surrender and request the said policy No. 266,899 was canceled, and this defendant did so agree to cancel such policy so issued to the plaintiff as aforesaid. This amendment having been allowed, the plaintiff’s counsel asked to be allowed to amend the complaint by striking out the word “ Third ” and substituting in place thereof the word “ First,” so as to make the policy of insurance set forth in the complaint apply to property located at No. 1583 First avenue instead of 1583 Third avenue, as therein alleged. The trial then proceeded upon the plead
It was further proved that the plaintiff had a place of business at 1583 First avenue and never had a place of business at 1583 Third avenue; that he requested Waldman, the broker, to obtain insurance-for him upon the property on the premises No. 1583 First avenue, and subsequently received from Waldman the policy of insurance upon the property on Third avenue and retained it in his possession until the trial; that the only policy ever received by the plaintiff was the policy covering the property in the building No. 1583'-Third avenue; that he never received a policy from the defendant covering the property upon First avenue, and did not know that the policy of insurance that he had was made out for property on Third avenue until after the fire, supposing all the time that he had a policy upon the property on First avenue.
At the end of the plaintiff’s case the defendant moved to dismiss, the complaint upon the ground that the policy sought to be enforced was canceled prior to the fire, and no premium had ever been paid thereon, which motion was denied, and the defendant excepted.. The defendant then proved that Waldman, the broker, called at the company’s office in July, 1900, and made an application for insurance on the property at No. 1583 Third avenue; that in pursuance of this application, which was reduced to writing by a clerk in the employ of defendant, there was a policy issued to the broker insuring the property at 1583 Third avenue; that subsequently the-broker again called at the defendant’s office and made another application for a policy upon the property 1583 First avenue; that, upon this application a policy was issued insuring the property at 1583 First avenue, which policy was numbered 266,899, but which was subsequently returned as not wanted, and canceled by the-insurance company; that the premium upon the Third avenue policy was eight dollars, and the premium on the First avenue policy was ten dollars, and it was the eight dollars upon the Third avenue policy that was paid; that the rate of insurance upon First
At the end of the defendant’s testimony the defendant’s counsel again moved to direct a verdict for the defendant upon the same ground, which motion was denied. The plaintiff also asked the court to direct a verdict for the plaintiff, which motion the court, granted, and the jury thereupon found a verdict for the plaintiff for the amount claimed, to which the defendant excepted. There was no request to submit any question to the jury.
I think the defendant was entitled to the direction of a verdict. The evidence is undisputed that the risk was accepted and the policy issued at the principal office of the defendant. Assuming that the mistake upon the original application by which Third avenue was. substituted for First avenue was a mistake of the defendant’s agent at the branch office, the application that the defendant accepted was. an application for insurance upon property contained in a Third avenue building, the premium was fixed for that insurance and that policy was issued and accepted by the broker. Subsequently, without returning this policy to the defendant, another application was made for a policy covering property in a building on First avenue,, the premium to be ten dollars. That application was also accepted by the defendant and the policy issued. There were thus issued by the defendant two policies, one affecting property in a building on First avenue, and the other affecting property in a building on Third avenue, at a different rate of premium. The broker returned the First avenue policy to the insurance company and told its agent to cancel it; and that policy was then marked canceled on the application. He delivered the Third avenue policy to the plaintiff, and
The cases cited by counsel for the respondent, where a policy of insurance has been reformed, have no application, for there was no mutual mistake or fraud, and no ground exists, in the absence of mistake or fraud, for either reforming the policy not returned or for re-establishing the canceled policy. The policy sued on was, on its face, a policy covering property on Third avenue. To entitle the plaintiff to recover under that policy, he was bound to prove that his property was injured in the building on Third avenue. He failed to prove that cause of action. There was no demand made for a reformation of the policy, nor did the court, in which the action was tried, have any jurisdiction to grant such a reformation. The action was not brought to recover upon the canceled policy, but upon the Third avenue policy, and the plaintiff was not entitled to recover upon that policy.
McLaughlin, J., concurred; Patterson, J., concurred in result; Van Brunt, P. J., and Laughlin, J., dissented.
Determination of Appellate Term reversed, new trial ordered, costs to appellant to abide event.