60 Barb. 84 | N.Y. Sup. Ct. | 1869
The policy upon which this action is based refers to the application for a more full and particular description, and forming a part of the policy; and it declares that the said policy is made and accepted in reference to the terms and conditions therein contained and thereto annexed, which are thereby declared to be a part of the contract, and are to be used and resorted to to determine the rights of the parties in all cases not otherwise specifically provided for. The conditions annexed require that applications for insurance shall be in writing, and that any misrepresentations, concealment, suppression or omission of facts or circumstances, known to him, increasing the hazard of the property, whether inquiry shall be made in respect to it in the application, or not, shall avoid the policy.
In the application, among other inquiries, is the following: “Have you the title to the premises? Are they incumbered by mortgage, or otherwise ? If so, for what sum, to whom, and what is the value of the property thus incumbered ?” The answer is “yes.” “ETo incumbrance.” “ Estimated value $4000.” At the foot of the application is the following: “And the said applicant hereby covenants and agrees to and with the said company, that the foregoing statement is a just, full and true- exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk.” The proofs show that there was, at the time of issuing the said policy, a mortgage on the premises for the sum of $550. The application is dated January 26, 1867, and the policy is countersigned February 4,
The question remains: What is the contract, as stated or contained in said application ? The covenant is that said statement is a just, full and true exposition of all the facts and circumstances in regard to the condition, value and risk of the property, so far as the same are known to the applicant, and are material to the risk. The existence of this mortgage must have been known to the applicant. It was his own act and deed, and he could not be allowed to allege or pretend ignorance in respect to its existence. Was it material to the risk ? The covenant has that qualification. It "asserts that the statement is true, so far as it relates to all matters inquired about and answered therein
In the case of Draper v. Charter Oak Ins. Co., (2 Allen, 569,) where the application was made part of the policy, as in this case, and the same contained a-covenant 'at the end, in the precise language used in the application in this case, the court held that the inquiry made as in this case, whether the premises were incumbered by mortgage, or otherwise, and answered “ no,” made the existence of a mortgage on the premises at the time material to the risk, by force of the contract. The same decision upon the question, upon similar policies of insurance, was made-in Patten v. Merch. and Farmers' Ins. Co., (38 N. H. 338;) Davenport v. New Eng. Fire Ins. Co., (6 Gush. 340;) Strong v. Manuf. Ins. Co., (10 Pick. 40 ;) Ripley v. Ætna Ins. Co., (30 N. Y. 136 ;) and Le Roy v. Market Fire Ins. Co., (39 id. 90.) IJpon this view of the law of the case, arising upon the face of the policy and the application referred to therein, the defendant’s motion for a nonsuit should have
The nonsuit was moved for", at the end of the trial, ón the express ground that the contract showed a warranty that there was no incumbrance on the premises^ and the motion was denied, I should think, from what is stated in the charge of the judge, expressly on the ground “that the application and answer did not constitute a warranty.” Where a nonsuit is thus moved upon the whole case and evidence, and the right judgment or decision is rendered, it will not be Set aside, as a general rule, upon exceptions to such decision, because an erroneous reason was given for denying the motion. (Beal v. Home. Ins. Co., 36 Barb. 614,)' But if the point presented for the motion beDa sound one, it must be clearly avoided or overreached by other clear facts or points in the case, or else an exception to the erroneous ruling must prevail. In this view I think if the question had been distinctly submitted to the jury upon the single issue whether Price, the defendant’s agent in procuring this insurance, was at thé time fully informed by the plaintiff, of the existence of the mortgage in question, and himself made the mistake of causing the plaintiff apparently to make a false answer to the inquiries respecting incumbrances, I should think- the erroneous decision upon the question of the warranty, on the' motion for a new trial, might be held immaterial, and the verdict, notwithstanding, be sustained,'within the cases of Rowley v. Empire Ins. Co., (36 N. Y. 550;) Plumb v. Cattaraugus Mu. Ins. Co., (18 id. 392;) Bidwell v. North W. Ins. Co., (24 id. 302;) Robie v. Hartford Ins. Co., (25 Conn. 51;) People’s Ins. Co. v. Spencer, (53 Penn. 353.) But there was a conflict in the testimony on that point and other issues, and I do not see by the charge that that issue was distinctly presented to the jury as a controlling one in the case. The case was tried and submitted to .the jury upon the theory that this statement was a mere representation,
The case having been submitted to the jury upon the whole evidence, the defendant was entitled to have a correct charge and ruling in respect to that, proposition. I do not see, therefore, how we can refuse to grant a new tijal.
In respect" to the other exceptions taken during the progress of the trial, or at the close of the charge, I do not see any substantial error; but will refrain "from discussing them particularly, as upon a new trial the case will necessarily assume a, new aspect, and the same questions may not arise.
I think the judgment must be reversed, and a new trial granted, with costs to abide the event.
Hew trial granted.
E. D. Smith, Johnson and Dwight, Justices.]