| NY | May 26, 1896
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *481 On this appeal two questions are presented for determination. One relates to the regularity of the procedure adopted on the trial. The other involves the correctness of the decision of the trial court upon the merits of the controversy. If the appellant's contention that the procedure adopted was erroneous and requires a new trial is sustained, it will render a decision as to the merits unnecessary. Therefore, the first question to be examined is as to the regularity of the procedure complained of. *483
On the trial the court directed a verdict for the plaintiff. This was after a denial of the defendant's motion for the direction of a verdict in its favor, and was made upon the request of the plaintiff. To this direction the defendant not only excepted, but thereupon, and before the verdict was actually rendered, requested the court to permit him to go to the jury upon the questions: 1, whether at the time the policy was issued the defendant's agent Falkner knew of the existence of the chattel mortgage; 2, whether the application was made before the policy was actually issued; and, 3, upon all the questions of fact in the case.
It is not apparent how the matters referred to in the second and third questions had any bearing upon the issue in this case. The only one upon which it is even claimed that there was any conflict in the evidence, or as to which there was any dispute between the parties, is whether, when the policy was issued, the defendant's agent knew of the existence of the chattel mortgage. Thus the only question upon this branch of the case is whether the court erred in refusing to submit that question to the jury.
The respondent insists that the appellant is not in a position to raise that question, for the reason that he did not request the court to submit it to the jury until after a verdict had been directed for the plaintiff. The case of Carr v. Sullivan (68 Hun, 246" court="N.Y. Sup. Ct." date_filed="1893-04-13" href="https://app.midpage.ai/document/carr-v-sullivan-5504367?utm_source=webapp" opinion_id="5504367">68 Hun, 246) seems to sustain that contention. Howell v. Wright
(
In determining the question whether the court correctly *484
decided the case upon the merits, it must be assumed that the plaintiff informed the defendant's agent of the existence of the chattel mortgage, stated to him that he had deposited the money to pay it in the bank at Le Roy, apprised him of the fact that the mortgage was held in Geneseo, and the money would have to be sent there before it was paid, and that the agent agreed that if the money was deposited in the bank he would insure the property in question from noon of the day of the date of the policy. That such was the conversation and understanding between the agent and the plaintiff was undisputed, and there having been no request by the defendant to submit to the jury the question of the plaintiff's credibility as a witness, his evidence must be regarded as conclusive. Hence, the precise question is whether the policy was valid if the defendant's agent knew of the existence of those facts. Having knowledge of all the facts concerning the property and chattel mortgage, unless he intended to waive the condition of the policy relating to mortgaged personal property, or through mistake omitted to make the proper indorsement, he must have intended to commit a fraud upon the plaintiff. Under these circumstances, it is to be presumed that if anything was omitted which was necessary to make the policy valid, it was by mistake, or that the condition was waived, or the defendant held itself estopped from setting it up. (VanSchoick v. Niagara Fire Ins. Co.,
The judgment is manifestly right, and should be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.