43 A.D.2d 561 | N.Y. App. Div. | 1973
In an action for reformation of fire insurance policies and to recover thereon for fire loss, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered on May 21, 1970, in favor of defendants Great Eastern Insurance Company, Sterling Insurance Company and Allcity Insurance Company, after a nonjury trial. Judgment reversed, on the law and the facts and in the interests of justice, and a new trial granted, with costs to abide the event. Plaintiff was the owner of a shop selling tobacco and like merchandise. Defendants issued insurance policies covering the contents of the shop against loss by fire. On February 1, 1966 a fire in the premises resulted in damage to the contents. The policies described plaintiff as “ Court Tobaeeq Co., 1110 Eastern Parkway, Brooklyn, New York”, instead of “ Court Tobacco Stores, Inc.”, plaintiff’s true name. The address stated in the policies, however, correctly described the location of plaintiff’s shop. After the fire, at the request of plaintiff’s broker, defendants’ agent issued an indorsement on each of the policies, changing the description of plaintiff to its true name, effective January 1, 1966. Upon the refusal of defendants to pay plaintiff’s loss under the policies, plaintiff instituted this action, in which, among other relief, reformation of the policies was sought to describe plaintiff by its correct title on the ground that the incorrect description of plaintiff was inserted in the policies by mutual mistake of the parties. Only the issue of reformation was tried by the court. The trial court granted judgment against plaintiff on the theory that plaintiff’s broker had mistakenly requested coverage under the panic written in the policies; that, though plaintiff had acted under a mistake, defendants had not, because they had complied with the broker’s request; and that, accordingly, unilateral and not mutual mistake was at most established. We think this theory cannot be sustained. Prima facie, when it is established that, through innocent mistake of an applicant for insurance, the nature of the ownership of the property to be insured, whether individual or corporate, is misdescribed, the error is mutual for purposes of reformation, even though the insurer is not aware of the error (see Snell V. Insurance Co., 98 U. S. 85; Jewell v. United Fire é Cas. Co., 25 Wis. 2d 509; Ann., 25 ALR 3d 580; Ann., 1 ALR 3d 885; 13 Williston, Contracts [3d ed."|, § 1568B). “ The name of the insured in the policy is not always important if the intent to cover the risk is clear ” (Matter of Lipschitz v. Hotel
