Flynn v. Hanover Fire Insurance

Bijur, J. This action involves the construction to be placed, under the circumstances, upon that clause of the standard policy of fire insurance which provides “ that in case of loss the assured will protect the property from further damage and exhibit it as often as required to the agents of the insurer.” Two and a half years after plaintiff’s policy for $1,000 had been issued by defendant to cover plaintiff’s household effects the fire occurred. Plaintiff was occupying three rooms in a tenement house. His apartment was gutted. The furniture and personal belongings of plaintiff were almost totally destroyed, though enough remained of some of it to enable a judgment to be formed as to its character and value in undamaged state. The firemen threw a considerable portion of the burned articles into the common yard. Immediately after the fire plaintiff abandoned the apartment and moved into a new one. The housekeeper of the tenement in which the fire occurred testified that, as late as three weeks after . the fire, the ruins had not been disturbed, and that insurance men had called there twice in the meantime. A week or two later, the appraisers duly appointed called, but found that the apartment had been cleaned up and closed, the debris having been removed by persons unknown to the parties to .the action. ¡ Plaintiff claimed to have lost $1,365 worth of personal property, making the loss under his policy total. The defense relied upon was breach of plaintiff’s obligation under ;the clause in the policy first above referred to. ' While I appreciate the importance to the insurance com [119] pany of having the property destroyed safely kept undisturbed until the completion of the appraisal, for the purpose not only of ascertaining the extent of the damage, but so far as possible the original value and character of the goods destroyed, still it seems unreasonable to demand that the occupant of a few rooms in a tenement house rendered untenantable by a fire shall bear the added expense of continuing his tenancy for the mere purpose of guarding the debris. There is no suggestion that the plaintiff himself removed the articles or in the slightest degree prevented a full inspection during the three weeks they remained undisturbed. In respect of policies issued to persons of modest means, living under the conditions disclosed in this record, I cannot see that the assured violated his obligations reasonably construed. The language of O’Brien, J., in McNally v. Phoenix Insurance Co., 137 N. Y. 389, 398, is peculiarly appropriate. “ In determining the liability of the defendant, it is entitled to the benefit of its contract fairly construed and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification.” I cannot escape the conclusion that the strict construction of the clause in question insisted upon by the defendant would have imposed upon the plaintiff an obligation quite unreasonable in the light of the circumstances, with all of which the defendant was no doubt familiar, as they were apparent both before and after the loss occurred. The judgment should be reversed and a new trial granted', with costs to appellant to abide the event. Seabury, J. concurs.