Baldwin v. Citizens' Insurance

Barnard, P. J. • The plaintiff owned a wooden building which stood upon land owned by the city of Brooklyn, and which he held in possession under a lease from the city. The policy contains a condition that all insurance shall be void is the subject thereof was on ground not owned by the assured in fee-simple, and that the policy contains a condition or warranty that the subject of the insurance was detached not less than 100 feet. As to the ownership of the land, there was proof given tending to show that the broker of the insured, at the time of his application, informed the assistant secretary that the land was owned by the city. ■ The assistant secretary took time to consider the question, and expressly sent the policy to the broker. When the jury found the fact that the company had issued the policy with full notice that the building was on leased land, the policy was good in this respect. Van Schoick v. Insurance Co., 68 N. Y. 434; Bennett v. Buchan, 76 N. Y. 386; Richmond v. Insurance Co., 79 N. Y. 230. The condition as to the distance at which the insured building was detached was the subject of conflicting evidence, not as to the real distance being about 70 feet, but as to whether the risk was increased. The jury have found the fact that the risk was not increased by the barn, and the right to recover, notwithstanding a condition like this, where the risk was not increased thereby, is upheld in Burleigh v. Insurance Co., 90 N. Y. 220. It was in the power of the company to waive a condition. Such waiver may be established by a paroi agreement, notwithstanding the policy calls for written indorsement upon the policy itself. Steen v. Insurance Co., 89 N. Y. 315. The judgment should therefore be affirmed, with costs. All concur.