17 Barb. 111 | N.Y. Sup. Ct. | 1853
This is a proceeding to review the report of referees appointed under the statute respecting claims against insolvent corporations. The claim itself was made on a policy of insurance executed to one Jonas S. Seaman, for the sum of six hundred dollars, on “his hay and grain, live stock, &c. carriages, &c. described in the application as situated in a barn on Oarnahan-street in the city of Utica, occupied by the applicant as a tavern barn.” By the terms of the policy, the loss or damage is to be paid only “ after due notice and proof thereof made by the insured in conformity to the by-laws and conditions annexed to the policy.” The policy also states, “that it is also agreed and understood, and this policy is made and accepted subject to and in reference to the terns, by-laws and conditions of the company, which are to be used and resorted to, to explain and, ascertain the rights and liabilities of the parties hereto, in all cases not herein otherwise provided for.” One of the conditions annexed to the policy, among other things provides that, as a part of the preliminary proofs served on the company and verified by affidavit, there shall be a statement “ that there has been no alteration, or occupation of said premises (not assented to by the company) which increased the hazard of said property, since the insurance was effected.” This provision applies expressly to property in a building, as well as to the building itself.
The statement in the application that the building in which the insured property was situated was occupied as a tavern barn, is a representation that the same was so occupied. (7 Wend. 72. 2 Hall’s S. C. Rep. 539, and cases cited by counsel, 16 Wend. 485.) The terms of the policy above recited, in connection with the terms of the condition above referred to, control the construction of the contract of insurance, and bind the insured by an agreement that the premises should not be occupied so as to increase the risk, after the insurance. Such are the rights and obligations of the parties, by the plain language of the instrument on which the plaintiff seeks to recover.
This will lead us to examine the finding of the referees. They find that one Marsh was allowed to keep a livery stable in the
Marsh kept a Every stable with six or eight horses secured by halters; and he kept no office or stove in the barn; yet he had two men besides himself, who went into the barn at all hours of the night, as late as two or three o’clock in the morning, as became necessary in the business of letting his horses and carriages and sleighs for evening parties; when they returned at. late hours;
Now there was positive proof that this úse of the barn Was material to the risk. Mr. Hart swears that the rate of premium
Gridley, W. F. Allen, Hubbard and Pratt, Justices.]
We also think the questions put to the witness Brown, and rejected, should have been answered. Such is the established rule in England and in Massachusetts, and we think it should be followed; though we do not place our decision on this ground.
Hew trial granted.