Summary
In Parmelee v. Hoffman Fire Ins. Co., 54 N.Y. 193, the court refused to follow these authorities, though they were pressed upon the attention of the court by the counsel for the defendant therein.
Summary of this case from White v. Royal Ins. Co.Opinion
Argued March 14, 1873
Decided June term, 1873
Wheeler H. Peckham for the appellant.
Charles F. Sanford for the respondent.
The insurance was upon a stock of piano fortes etc., "contained in the three story and basement brick building, occupied by the assured for the manufacture of piano fortes, and situate No. 9 Howard street, New Haven." When the insurance was effected it was represented that the premises were wholly occupied by the assured, and it seems to have been shown at the trial that such was the fact. The representation as to the occupation of the building was unquestionably a warranty and was so held on the trial, and if broken, avoided the policy. The only pretence that it was broken, grows out of a statement in the proofs of loss, furnished by the plaintiff after the fire, stating that, "the premises were occupied in part by the Lindsay Fire Arms Co., and the insured, and for no other purpose whatever; the origin of the fire was the overflowing of a pan of Japan in an adjoining building occupied by the Lindsay Fire Arms Co. There was no change in the occupancy of the premises since the insurance was effected, or if there was any, it was:"
It is claimed, on the part of the defendant, that this statement in the proofs of loss, affords conclusive evidence against the plaintiff that the warranty as to the occupation of the premises at the time of the insurance was broken, and for this reason evidence to show exactly how the fact of occupancy was, at the time of the insurance, was objected to by the defendant and we think the objection was very properly overruled. It is too clear for argument, that there was no estoppel, and I do not think the statements in the proofs of loss bear any such construction as is contended for by the defendant. But however that may be, it was at most a question for the jury, and the evidence of the plaintiff made the fact of occupancy so clear, that the learned counsel for the defendant did not ask that it be submitted to the jury. I have been unable to perceive, that the occupancy of the addition or "L," as it is named, has anything to do with the case, as I gather from the testimony it was an adjoining building of one story not on Howard street, but to which there was access through an alley from Orange street, in the city of New Haven. The property insured was in a three story brick building on Howard street, and there is no question but that the manufacture of piano fortes insured against, was conducted in that building, and the assured was in fact the tenant of the Lindsay Arms Co., who were owners of the entire property. I am not able to discover any defect in the plaintiff's title, or error in directing a verdict for the plaintiff, and the judgment of the Supreme Court should be affirmed with costs.
All concur.
Judgment affirmed.