Morton v. Home Insurance

Summary judgment entered July 15, 1968, unanimously reversed on the law, order entered June 11, 1968, denying motion for leave to serve an amended answer, unanimously reversed on the law and facts and in the exercise of discretion, with $50 costs and disbursements to the appellant. The motion for summary judgment is denied, and the motion for leave to serve an amended answer is granted. The record shows that the policy containing the agreed valuation was issued by defendant on the basis of a signed application which allegedly contained misrepresentations as to description and purchase price of the boat. The policy was one of marine insurance, and in marine insurance the insured is bound even though no inquiry be made to disclose every fact material to the risk within this knowledge. (Stecker v. American Home First Assur. Co., 299 N. Y. 1, 6.) The obligation to disclose includes the duty not to misrepresent. The record in this aspect at least presents a question of fact. In view of the information disclosed on the examination before trial, defendant was justified in waiting to complete the examination before trial of plaintiff and the others involved in the purchase of the boat before moving to amend its answer, and its failure to do so prior thereto was not dilatory or prejudicial. Concur—‘Stevens, P. J., Capozzoli, Nunez, McNally and Steuer, JJ.