83 N.Y.S. 730 | N.Y. App. Div. | 1903
The plaintiff brings this action to recover $3,000, the amount of two policies of insurance written upon certain pictures, f urniture and other personal property contained in a summer hotel at Lynbrooke, Nassau county, N. Y. The pleadings in the case, in so far as any question of law is involved, were identical with those in the case of Cheever v. British-American Insurance Company (86 App. Div. 333), which was before this court contemporaneously with the present appeal, and the case seems to have been tried and disposed of by the jury upon the theory that the general denial permitted the defense of fraud and false swearing. No question was raised as to the correctness of this theory, and the jury having found in favor of the plaintiff, the defendant has certainly had all of the opportunity which it could well have to defeat the claim of the plaintiff, and this court is not called upon to be astute in discovering a method of avoiding the verdict of the jury, where it is so obviously within the scope of the defendant’s contract.
The appellant urges principally that it was error to admit in evidence three memoranda, known as Exhibits “ E,” “ F,” and “ Gr,”' which purported to be lists of the articles contained in the hotel at the time of the fire, and which were wholly destroyed. These lists were, according to the testimony of the plaintiff, made up within two weeks of the date of the fire, while the matters .were fresh in
-. -The testimony of Mr. Wintner, giving a summary of the items in .the lists, merely served, to bring before the jury in a concise form that which had already been testified to by the plaintiff, and could have done no harm to the defendant.
While the policy limits the. obligation of the defendant to the cash value of the property at the time of the fire, the mere fact that the plaintiff has filed a claim, basing her estimate of the loss upon the purchase price of the articles, cannot defeat a recovery where there is no fraud in the matter.
.v.: A ■ mere misstatement of the loss, based upon an erroneous estimate of values, which is but the expression of an opinion, does not ¡operate to avoid the policy; the misstatement must be false and fraudulent. (Titus v. Glens Falls Insurance Co., 81 N. Y. 410, 421.) In- the case at bar the schedule, giving details as to the place of purchase and price of the goods, does not bear, evidence of intended fraud, and the verdict: of the jury has conclusively disposed of this contention.
. We do not find reversible error; the case appears to have been disposed of under conditions which were more favorable to the defendant than it had a right to expect under its pleadings. The judgment and order appealed from should be affirmed, with costs.
" Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.
, Judgment and order affirmed, with costs.