Vertullo v. Commonwealth Insurance

Defendant appeals from a judgment against it and in favor of plaintiff entered upon a jury verdict at Trial Term and from an order which denied its motion for a nonsuit and to set aside the verdict and for a new trial. The action was to recover for loss and damage by fire upon a fire insurance policy issued by defendant to plaintiff. By its pleading and proofs defendant tendered an issue as to the cancellation of the policy sued upon when another was written in substitution thereof with additional insurance upon furniture in the dwelling house. In our opinion the finding that the policy in suit was not cancelled and therefore was in force at the time of the fire, is against the weight of evidence and was induced by other considerations than a fair and impartial testing of the weight of the evidence. The evidence as to the declarations of defendant’s general agent, Simpson, made after the fire, to the effect that the policy in suit was in effect at the time of the fire, was erroneously admitted upon the issue of cancellation, and no foundation for 1022 such proof was properly laid for its admission for any other purpose. Such proof was not binding upon defendant upon the main issue. (Cobb v. United Engineering & Contr. Co., 191 N. Y. 475; Merchants’ Nat. Bank v. Clark, 139 N. Y. 314; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Kraus v. Fifth Ave. Coach Co., 233 App. Div. 357; 2 Restatement, Agency, § 286, comment b; 8 Couch, Cyclopedia of Insurance Law, § 2205, p. 7133.) It was highly prejudicial and calls for a reversal. Judgment and the part of the order which denied defendant’s motion to set the verdict aside and for a new trial, reversed, on the law and facts, and a new trial ordered; said order otherwise affirmed, with costs to appellant to abide the event. Hill, P. J., Heffernan, Brewster, Foster and Deyo, JJ., concur.