88 N.Y.S. 1012 | N.Y. App. Div. | 1904
This is an action to reform an insurance policy and to recover upon it, as reformed, a loss sustained by fire. The insurance was' Upon personal property owned by the plaintiff “ or any member of the household,” consisting principally of household furniture and effects “ while contained in the frame building, owned by the assured and situate on the southerly side of the upper road leading from Mount Kisco tó Bedford, * * * Westchester county, N. Y. This insurance also to cover the property insured while in transit from Pelham Bridge to residence of the assured at Bedford.” The residence of the plaintiff containing the property was in fact situated on the northerly side of the road specified in the policy. He alleges that the prop
We regard this as a plain case for the reformation of the policy. It is manifest that the plaintiff intended to insure the property contained in his residence. He doubtless knew, although even that
Plaintiff intended to procure insurance upon the household prop-.....' erty in his residence and that is the property the defendant intended to insure, but in reducing their agreement to writing the word “ southerly ” was erroneously inserted instead of the word “northerly” as indicating the location of the residence of the assured with reference to the highway. The casej therefore, falls within the r doctrine of the authorities that where there was no mistake in the ' agreement but merely a mistake in reducing it to writing the contract will be reformed. (Pitcher v. Hennessey, 48 N. Y. 415 ; Maher v. Hibernia Ins. Co., 67 id. 283; Hughes v. Mercantile Mutual Ins. Co., 55 id. 265 ; Bush v. Hicks, 60 id. 298; Arend v. Laing, 79 Hun, 203.)
There is no force in the suggestion that since the plaintiff’s agent
It is unnecessary to decide whether the plaintiff could have recovered without reformation and, therefore, we express no opinion on that question.
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. '