227 A.D. 256 | N.Y. App. Div. | 1929
The Standard Accident Insurance Company, through its agents, Huber & Partridge, of Scranton, Pa., issued its
John B. Gretzula, the employer, after the issue of said policy, undertook some painting work at Deposit, N. Y. In order to be assured of coverage in New York State, he notified the broker, through whom his policy had been written, of his intention. The broker has testified that the agents who wrote the policy agreed to cover said work. The agents later sent a rider which was attached to the policy and for which an additional premium was paid. The employer was orally assured by his broker that the rider fully protected him while doing work in New York State. Such was not the fact. The rider simply provided: “ In consideration of an additional premium of forty-five and 00/100 dollars ($45.00) and subject otherwise to all of its provisions, conditions and limitations, it is hereby understood and agreed that the undermentioned Policy is extended to include the following classification: ‘ Iron Erection ’-— Code No. 655 — Payroll $1000.00, Rate $4.50.”
The claimant’s intestate, who lived in Scranton, Pa., was, a structural ironworker, but when his work was slack he worked at
The policy and rider limited the coverage to work performed in Pennsylvania and concededly the work on which deceased was employed at the time of his injury was in the State of New York. The terms of the policy could not be changed or waived by oral agreement of the agent of the company. The policy expressly required an indorsement attached thereto signed by the president, a vice-president or secretary of the insurance company.' It was also expressly provided that notice to any agent, or knowledge possessed by any agent or by any other person should not be held to effect a waiver or change in any part of the contract of insurance. The terms of the policy and rider were controlling as to the liability of the insurance carrier. (Astrin v. East New York Woodwork Mfg. Co., 210 App. Div. 720; Levine v. East New York Electric Corp., Id. 730; Neubeck v. Doscher, 204 id. 617; Matter of Szabo v. Standard Commercial Body Corp., 221 id. 722; Matter of Pettit v. Reges, 242 N. Y. 272.)
Presumably the State Industrial Board made a finding of coverage based upon an oral insurance agreement contrary to the terms of the written policy and its rider. The State Industrial Board has jurisdiction to determine the liability of an insurance carrier under its policy. (Matter of Jaabeck v. Crane’s Sons Co., 238 N. Y. 314; Matter of Cheesman v. Cheesman, 236 id. 47; Matter of Skoczlois v. Vinocour, 221 id. 276.) We are aware of no case, however, where it has been held that the State Industrial Board has the jurisdiction of a court of equity to reform the policy to comply with an oral insurance agreement. (Lewitt & Co., Inc., v. Jewelers’ Safety Fund Society, 249 N. Y. 219.) The power to reform instruments is an extraordinary one and its exercise has always
The award should be reversed and the claim dismissed as against the carrier.
Van Kirk, P. J., Davis, Whitmyer and Hasbrouck, JJ., concur.
Award reversed and claim dismissed as against the insurance carrier, without costs.