35 N.Y.S. 374 | N.Y. Sup. Ct. | 1895
This action was begun February 24, 1891, to recover damages alleged to be due under a policy of fire insurance issued by the defendant. The plaintiffs are partners under the firm name of Walker & Bresnan. In November, 1889, William S. Saunderson and Charles Gf. Adams were partners under the firm name of William S. Saunderson & Co., engaged in business on Water street, at the city of New York. November 23, 1889, William S. Saunderson & Co. mortgaged to Walker & Bresnan a quantity of printing materials and machinery to secure the payment of $676.92, and January 27, 1890, they also mortgaged to Walker & Bresnan printing materials and machinery to secure the payment of $654.98. Both mortgages contained a covenant by the mortgagors to keep the property insured in an amount to be approved by the mortgagees, and the policy assigned to them. On the 11th of November, 1890, Charles C. Adams sold his interest in the firm of William S. Saunderson & Co. to James A. Starkweather, and thereupon the firm became Saunderson & Starkweather. November 11, 1890, the defendant, by its policy of insurance,—a New York standard policy,—insured Saunderson & Starkweather for one year from November 11, 1890, at noon, to November 11, 1891, at noon, against loss or damage by fire “to an amount not exceeding one thousand dollars.” The policy contained the following provisions:
(1) “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, 9 * * or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. * * *”
(2) “If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto. * * *”
(3) “This company shall not be held to have waived any provisión or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for. * * *”
(4) “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. * * *”
The witnesses all agreed that when the contract of insurance was entered into the defendant did not know of the existence of the chattel mortgages, nor did it know that any persons, other than the insured, were interested in the property covered by the policy. November 12,1890, the property was destroyed by fire, and on the next day, after the defendant had learned of the fire, one of the brokers
At the close of the evidence the defendant moved that a verdict be directed in its favor, which was granted, and an exception taken. The plaintiffs did not request that any issue of fact be submitted to the jury, or that a verdict be directed in their favor, but their exception is sufficient to raise the question whether any issue of fact should have been submitted to the jury. Train v. Insurance Co., 62 N. Y. 598; Clemence v. City of Auburn, 66 N. Y. 334; Trustees of East Hampton v. Kirk, 68 N. Y. 459. There was no conflict in the evidence except in respect to the hour when the conversation occurred between the broker and the application clerk, and whether the latter said that the absence of the mortgagees’ provision would make no difference, and that the loss would be paid to the insured by check. The hour when the conversation took place is not material, and the application clerk had no power to waive, orally, after the loss, any one of the provisions of the policy. This is expressly provided for in the provision lastly above quoted from the policy. There was no issue of fact for the jury, and the sole remaining question is, should a verdict have been directed for the plaintiffs? Under the provision
The-judgment should be affirmed, with costs. All concur.