112 Misc. 440 | N.Y. App. Term. | 1920
The action was brought upon a policy of fire insurance to recover damages for certain flour claimed to have been covered by said policy. Thei policy is known as a floating policy covering merchandise owned by the insured wherever (with certain exceptions) the same may be located. The appellant here seeks to review certain questions of fact, but at the close of the plaintiff’s case defendant moved for a directed verdict, and it was then expressly agreed, and in fact insisted upon by defendant, that there were no questions of fact or evidence in support thereof to be passed on, whereupon the plaintiff also moved for a direction of a verdict. As both asked for a directed verdict, all questions of law and fact were, therefore, to be decided by the court and these were resolved in favor of the plaintiff. Trimble v. New York C. & H. R. R. R. Co., 162 N. Y. 84; Mullen v. Quinlan & Co., 195 id. 109, 113. Only two questions are, therefore, presented for review, first, whether the plaintiff owned the property in question at the time it was destroyed, and, second, whether the co-insurance clause of the policy was applicable, in which latter event the defendant’s liability would be reduced.
It appears that plaintiff purchased flour from Youngblood, Inc. Youngblood, Inc., procured the flour to be shipped to plaintiff, the terms of sale being that plaintiff was to pay for the flour on its arrival by a' sight draft against the bill of lading. When the flour arrived plaintiff was unable to pay for the same, but wrote Youngblood requesting that the flour be placed in a certain warehouse for his account, and at his
The co-insurance clause contained in the policy was disregarded apparently upon the ground that it was illegal and, therefore, void, upon which theory this court is asked to sustain the judgment in that particular.
In 1917 the legislature, by amendment to section 121 of the Insurance Law, provided for a new standard form of fire insurance policy and said amendment also provided that “ no other or different provision, agreement, condition or clause shall be in any manner made a part of such contract or policy or indorsed thereon or added thereto or delivered therewith, except as follows, to wit: * * * 3. The extent of the contribution to be made under the policy in case of loss or damage; 4. Any other matter necessary clearly to express all the facts and conditions of insurance on any particular risk. Provided, however, that no such agreement or rider shall be inconsistent with or a waiver of any of the conditions or provisions of the standard fire insurance policy hereby established.”
Richards in his work on insurance calls attention to the fact that certain states have passed statutes prohibiting the inclusion of a co-insurance clause -in a policy except as the insured may voluntarily accede to it in consideration of a lower premium and the
It follows that the judgment should be affirmed, with costs.
Guy and Wagner, JJ., concur.
Judgment affirmed, with costs.