Merrill v. Agricultural Insurance

Smith, J.: The only question in this case that need be considered is, whether the breach of the condition respecting subsequent incumbrances avoided the policy as to the personal property as well as the realty. The case of Trench v. Chenango Mutual Insurance Company (7 Hill, 122), if followed, sustains the ruling at the Circuit. The correctness of the decision in that case was questioned by Boot, J., delivering the opinion of the Court of Appeals, in Wilson v. The Herkimer County Insurance Company (2 Seld., 53), and in Smith v. Empire Insurance Company (25 Barb., 497), Balcom, B, speaking for the court, at General Term in the sixth judicial district, said that the case of Trench had been shaken too much by the Court of Appeals, in Wilson's Case, to be followed. It is by no means clear, however, that the Court of Appeals intended to overrule the case of Trench. The case of Wilson was decided in 1851. Six years later, the case of Heacock v. The Saratoga County Mutual Insurance Company, not reported, came before the Court of Appeals. It was an action on a policy of insurance against fire, by which the plaintiff’s woolen factory, in the city of Buffalo, and the machinery therein, were insured for separate amounts. The building and machinery were entirely burned. On the trial of an action to recover the loss, before Justice Sill and a jury, the defendant proved that the title to the premises was not in the plaintiff at the time of the issuing of the policy, or at any time thereafter; also, that the plaintiff had enlarged the building and erected a new build [431] ing near it. The court charged the jury that, under the proof, the plaintiff could not recover for the loss of the building, but that the fact that it appeared that the plaintiff had not the legal title to the real estate did not necessarily deprive him of the right to recover for the loss of the machinery in the building, unless the plaintiff had increased the risk by the addition to the building and the erection of the new building. The defendant excepted. The defendant asked the court to charge that if the policy was void as to the building, no recovery for any cause could be had upon it. Refused, and defendant excepted. The jury found a verdict for the plaintiff for the value of the personal property; and the judgment entered thereon was affirmed at General Term and in the Court of Appeals. (Ct. App. Cases, March Term, 1856.) That case seems to be in accordance with the decision in Trench's Case, and, on the whole, although there are respectable authorities on both sides of the question, in this and other States, we think the rule thus laid down must be followed by us till it is expressly reversed or overruled by the Court of Appeals. Judgment affirmed. Mullin', P. J., and Talcott, J., concurred. Judgment affirmed.