Opinion
November 8, 1979
Judgment, Supreme Court, New York County, entered April 14, 1979, adjudging that plaintiff recover the sum of $57,823.13, with interest and costs, making a total of $83,723.31, is unanimously modified, on the law, to the extent of striking the second decretal paragraph of said judgment, and the tenth cause of action in the second amended complaint is dismissed, on the merits, and the judgment is otherwise affirmed, with costs to defendant-respondent-appellant the Home Insurance Company. The Trial Justice found after trial that there were valid defenses to the action on the policy in that the risk sued on was excluded by specific provision of the policy because other policies of insurance covered the same risk, and that a condition of the policy had been violated in that settlement had been made without the knowledge or approval of the insurance company. This finding is in nowise attacked by plaintiff-appellant. A determination that a certain risk is not covered by the policy, or that the insured has breached its duty not to settle any claim without the company's consent, does not entitle the insured to a return of any portion of the premium. Plaintiff's case is obviously no stronger because the Trial Justice also found that plaintiff had been guilty of misrepresentation with respect to the particular risk in obtaining the policy, the insurance company not having elected to cancel the policy for such misrepresentation.
Concur — Birns, J.P., Fein, Lane, Markewich and Silverman, JJ.