184 A.D. 876 | N.Y. App. Div. | 1918
On or about the 5th day of May, 1911, tne four insurance companies, defendants, issued a joint policy upon three separate buildings in the village of Hurleyville, Sullivan county, N. Y. The policy covers as follows:
“ $1,500 on the two-story frame shingle Roof Building and Additions, including Foundations, Heating Apparatus and Connections, Plumbing, Electric Wiring, Steam, Gas and Water Pipes and Fixtures, Window and Door Screens occupied as a dwelling, and
“ $1,000 on the one-half story frame shingle roof building, occupied as a dwelling, and
“ $500 on the frame barn, all situate on the southwest side of Main Street, in the Village of Hurleyville, Sullivan County, New York.” , ,
The defendants pleaded the short Statute of Limitations
The plaintiff represented in the policy that two of these buildings were occupied as dwellings. Neither one of said buildings was principally so occupied. One of them consisted of rooms down stairs which were used as a store or as a blacksmith and wagon shop with some dwelling rooms on the second floor occupied by the tenant. The other consisted of a store or butcher shop upon the first floor with “ two little rooms ” upon the second floor which may have been occupied. The use of either of these buildings as a dwelling was incidental merely and certainly not the principal use to which these buildings were put. The statement in the policy that they were used as a dwelling is to be deemed a warranty by the plaintiff and as such use was not the principal use it is clear that warranty has been breached. (Alexander v. Germania Fire Ins. Co., 66 N. Y. 464; Maher v. Hibernia Ins. Co., 67 id. 288; Donley v. Glens Falls Ins. Co., 184 id. 107.) It is not enough that part of the building was occupied as a dwelling house, as long as that was not the principal purpose for which the building was used.
There is still another ground upon which this judgment should be reversed. The policy required the furnishing of proofs of loss within sixty days from the time of the fire and further provided that “ the loss shall not become payable until
The policy still further states: “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.”
In order to recover, therefore, it was incumbent upon this plaintiff to show that he had served upon the defendants proper proofs of lo'ss. It is not enough that he show service of papers that he claims to have been proofs of loss. The paper that was in fact served the defendants were not allowed to introduce in evidence, nor was it incumbent upon the defendants in the first instance to show that the proofs of loss were not sufficient. It rested with the plaintiff to show as a condition precedent to his right of recovery, the service of the proofs of loss containing the matters required to be contained therein by the provisions of the policy. This the plaintiff has failed to do. This is answered by the plaintiff’s attorneys by the statement that no such defense is pleaded. As long as it is a condition precedent to recovery, the plaintiff is required to prove full compliance with such condition. This was denied by the defendants and no further pleading is necessary by the defendants in order to raise the issue.
Other questions are discussed in the briefs, which it is not necessary here to discuss, in view of the conclusion which we have reached. The judgment should be reversed and, inasmuch as the action is barred by the Statute of Limitations, the judgment and order should be reversed, with costs, and the complaint should be dismissed, with costs.
Clarke, P. J., Laughlin and Dowling, JJ., concurred; Shearn, J., dissented.
Judgment and order reversed, with costs, and complaint dismissed, with costs.