74 N.Y.S. 177 | N.Y. App. Div. | 1902
The plaintiff was nonsuited, and upon this appeal is entitled to the most favorable construction which may be put upon the evidence in support of his cause of action, but we are unable to discover error in the disposition of the case. The action was brought to recover a loss sustained by the plaintiff in the destruction by fire of- a four-story brick building, iipon which the defendant had written a policy, which policy had been duly delivered and a premium paid. One of the conditions of thé policy (a standard policy) was that “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple, or if the policy be assigned before a loss.” The evidence of the plaintiff establishes the fact that the building upon which the policy of insurance was written was located upon ground which was not owned by the insured; the plaintiff’s right in the premises arose from a lease for years, and as there was no provision in writing modifying this clause of the policy, the plaintiff had no cause of action unless the condition was waived, or the defendant was estopped to -urge the defense. The trial court granted defendant’s motion to dismiss the complaint, and plaintiff’s exceptions are before us for review.
We have sought to discover facts and principles to distinguish this case from Weed v. L. & L. Fire Ins. Co. (116 N. Y. 106), but without success, and. we are clearly of the opinion that the insured, not. having been the owner of the premisés on which the building destroyed was located, has never had a valid contract of insurance with the defendant. This condition as to the ownership- of the property was precedent to the attaching of the risk; and as plaintiff had no title to the real estate on which the building was located, it was broken upon the delivery of the policy. Upon this point of the case, therefore, the plaintiff failed to prove, a valid contract, and
The plaintiff endeavors to distinguish the principles laid down in this case from those which should apply in the case at bar, and suggests that it has not been followed in the later cases. "We are, however, unable to find any substantial difference between the questions presented here and those involved in the Weed case, and a careful examination of the adjudicated cases does not discover to us any disposition on the part of the courts to depart from the rules laid down in the case cited. On the contrary, we find it recognized as an authority in Weed v. H. B. F. Ins. Co. (133 N. Y. 394, 403); Roby v. A. C. Ins. Co. (120 id. 510, 517); Ronald v. M. R. F. L. Assn. (132 id. 378, 384); Moore v. H. F. Ins. Co. (141 id. 219, 223), and in Gibson El. Co. v. Liverpool & L. & Globe Ins. Co. (159 id. 418, 423). In the latter case the court say: “ The question as to what constitutes a waiver of a forfeiture under the provisions •of a fire insurance policy, has often been considered by this court. Thus, in Weed v. L. & L. Fire Ins. Co. (116 N. Y. 106), it was decided that, to establish a waiver óf a forfeiture in a policy of insurance, the proof must show a distinct recognition of the validity of the policy after a knowledge of the forfeiture by the person by whom it is claimed such forfeiture was waived.”
The evidence in the case at bar, assuming that a mere insurance adjuster would have the power to waive the conditions of the policy so as to give life and validity where there had been none up to the time of the alleged waiver, does not show a distinct recognition of the
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.