88 A.D. 153 | N.Y. App. Div. | 1903
Upon the trial the defendant insisted upon three defenses: First, that under the terms of the policy, it was void “ if the interest of the insured be other than unconditional and sole ownership; ” secondly, that the plaintiffs furnished fraudulent proofs of loss; thirdly, that the property was burned by the act or connivance of the plaintiffs. We are convinced that the defendant’s first objection must prevail, and it, therefore, becomes unnecessary to examine the' other questions which the defendant has urgently insisted upon.
It is unquestioned that the interest of McGrath, who was insured by the defendant, was not the unconditional and sole ownership of the property insured. Under the terms of the policy itself, therefore, the policy was ineffective unless the defendant has waived this condition to its validity. The force of this objection is sought to be evaded by the plaintiff by testimony of McGrath to the effect that McIntyre was correctly iñformed as to the actual ownership of the property at the time the application was made to him. There is no claim that any information of such fact was conveyed by McIntyre, to the defendant’s lawfully appointed agents, and, in fact, McIntyre denies that such information was given to him. Assuming for the argument that McIntyre was so informed of that fact, we think it cannot avail the plaintiffs by reason of the fact that McIntyre was not the agent of the defendant. The policy provides that in any matter relating to this insurance, “ no person, unless duly authorized in writing, shall be deemed the agent of this company.” There is
The respondents again insist that the appellant by its failure to move for a nonsuit at the close of the evidence has conceded that there is a question of fact for the jury, by which concession it is now bound. They cite in support of this position Wangner v. Grimm, (169 N. Y. 421); Sigua Iron Co. v. Brown (171 id. 488); Hopkins v. Clark (158 id. 299); Littlejohn v. Shaw (159 id. 191); Pollock v. Penn. Iron Works Co. (157 id. 699); Ives v. Ellis (169 id. 85). In these cases it seems to be held that a failure to move for a nonsuit at the close of the evidence is a concession that there is evidence sufficient to go to the jury, which concession is binding upon a defendant upon appeal. It is further held that after a denial of a motion for a nonsuit, made after the plaintiff’s evidence is received, the submission of evidence by the defendant is a waiver by the defendant of' an exception taken to such denial, and that the defendant, in order to avail himself of his exception, must move again at the close of the evidence, upon all of the evidence, for a dismissal of the complaint. The cases cited, however, in which these rules are held, are all cases which arose upon an appeal from an affirmance of a judgment by the Appellate Division, where the judgment is sought to be reversed in the Court of Appeals upon the ground that the evidence does not sustain the verdict. The Court of Appeals is lim
“ Nor do we think the appellant’s other contention, that because the defendants were not sworn as witnesses in the case the court may assume that a cause of action exists without the proof necessary
We conclude, therefore, that the trial court erred in submitting this case to the jury, and the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event of the action.
All concurred, Parker, P. J., in. result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.