Cornell v. Le Roy, 9 Wend. 163

Cornell v. Le Roy

9 Wend. 163 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

The objection to the notice and proof delivered by Mr. Robinson, on the 16th January, 1829, the day after the fire, on the ground that they were not *165piven in the name of the assured, is without foundation, Mr. Robinson acted as the attorney and agent of Mrs. N. who had a mortgage upon the premises consumed, and to whom the policy in question had been assigned as collateral security, with the written consent of the defendants. The 9th condition attached to the policy provides, “ that all persons insured by the company, and sustaining loss, or damage by fire, are forthwith to give notice thereof to the agent a person holding the policy as assignee, with the consent of the insui’er, may well be considered the assured within the meaning of this clause. He is the party in the interest, and no objection is perceived to the preliminary proceedings being conducted in his name. When the suit is commenced, it must be in the name of the party to the contract, as the instrument is not negotiable.

Whether the account of the loss delivered by Mr. Robinson was sufficiently particular, or not, cannot now be determined. He retained no copy of it ; the defendants, although repeatedly applied to, refused to permit the attorney for the plaintiff to take a copy of it. Upon this point, therefore, we have only the presumption arising from the fact, that it was prepared by a professional gentleman of great accuracy and experience, and was believed by him at the time to be sufficient, although at the trial he had no precise recollection of its contents. If notice had been given to the defendants to produce the paper, and they had not, I should be inclined to the opinion, that the circumstances of the case would have warranted the conclusion that it was substantially sufficient; but it is not necessary to rely upon that ground. Mr. Wyckoff testifies that he repeatedly applied to the defendants for a copy of the paper delivered by Mr. Robinson, that they for some time evaded the subject, or put the witness off, but finally refused to deliver or permit copies to be taken. The witness then immediately prepared new papers, by way of preliminary proofs, and served them; to this second set there is no objection, except that they were not served in time. The conduct of the defendants in keeping the plaintiff in suspense in relation to the papers first served, is an ample excuse for the delay. The assured is as soon after the fire as possible to deliver in a particu*166lar account of such loss or damage, and this means no more than that it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay—in this case there was none. The notice given by Robinson was served the very day after the fire, and was a good notice, and the specification delivered by WyckofF was delivered as soon as it was ascertained that the defendants would not give a copy of the paper first served. The testimony of WyckofF was prima facie sufficient to shew that the justice by whom the certificate required by the 9th condition was given, was the nearest justice to the premises consumed ; the certificate of the magistrate states that he was not interested in the loss. It cannot be incumbent on "the plaintiff in such a case, to establish by positive proof the negative fact that he was not interested. It is for the defendant to impeach his certificate, by showing his interest, if any interest existed.

This is not a case for the court to interfere with the verdict, as against the weight of evidence; although there are circumstances of suspicion in the case, I cannot say that in my judgment they were sufficient to have justified the jury in finding that the plaintiff set fire to his own house. The verdict certainly is not so clearly against the weight of evidence upon that point as to justify the court in setting it aside. The defendants had the benefit of a strong charge in their favor. The jury, "notwithstanding, thought the plaintiff innocent.

Motion for a new trial denied.