Herzig v. Washington Fire Insurance — 143 A.D. 386

Majority

p. 386

George B. Herzig and Others, as Trustees for the Benefit of Creditors of H. Leonard Simmons, Doing Business as H. Leonard Simmons & Company, Appellants, v. Washington Fire Insurance Company, Despondent.

First Department,

March 24, 1911.

Headnote

Pleading—bill of particulars — insurance — defenses — false statements by insured — false books —proof of loss.

Where in an action brought by the trustees of creditors of a firm to recover on a policy of fire insurance, the complaint alleges that the value of the goods was over §33,000 and the total loss was over §28,000, and the defendant as a defense alleges that the insured made false and fraudulent representations as to the value of the property insured and the amount of the loSs, well knowing that the former did not exceed §5,000, and the loss was not more than §500, which false representations rendered the policy void under its terms,.the plaintiffs on a motion for a bill of particulars are not entitled to an itemized statement of the goods claimed to h^ve had a value of not exceeding §5,000, and of the loss which is claimed not to have exceeded §500.

Where the answer further alleged that one @f the members of the firm, when being examined under oath in regard to an adjustment of the loss, gave false and fraudulent testimony on material points which rendered the policy void, plaintiffs are entitled to' a bill of particulars of that part of the testimony which is claimed to have been false and fraudulent, and in what respect it was so. »

Where the answer further alleged that under the policy the insured were bound to produce their books of account, bills, invoices or other vouchers for examination by the defendant, and that on being required to produce them one of the firm, with intent to defraud the defendant, failed to produce such books and papers, and falsely and fraudulently produced false books and papers which had been prepared by him or on his behalf, plaintiffs are entitled to a bill of particulars of the books and papers which the insured failed to produce, which of those produced were false and which manufactured or prepared by the insured.

Where the answer also alleged that the sworn proof of loss, contained false and fraudulent statements with respect thereto, the defendant should be ordered, as part of the bill of particulars, to give plaintiffs a copy of the proof of loss, although the proper remedy for relief in that regard is for a discovery.

Appeal by the plaintiffs, George B. Herzig and others, from so much of an order of the Supreme Court, made at the Hew Fork Special Term and entered in the office of the clerk of the county of

p. 387

Hew York on the 24th day of February, 1911, as denies in part the plaintiffs’ motion for a bill of particulars.

Clayton J. Heermanoe, for the appellants.

Charles Goldzier [Moses H. Grossman with him on the brief], for the respondent.

This action is brought by the trustees of creditors of the firm of H. Leonard Simmons & Co., on a policy of fire insurance issued by the defendant to said firm on furs and skins in their store at Ho. 139 Fifth avenue, which it is alleged were “ partially destroyed and largely damaged by fire ” during the period covered by the policy. A total loss is claimed, it being alleged' that the total sound value of the property was at least the sum of $33,933.45, and that the total loss was at least the sum of $28,367.60; and that .the total insurance was $25,500, including the policy in question, which was for $1,000. The policy contained a provision to the effect that any fraud or false swearing on the part of the insured relating to the insurance, either before or after a loss, should render the policy void.

The defendant pleaded as a separate defense that the insured made false and fraudulent representations to defendant with respect to the sound value of the property insured, stating it to have been as alleged in the complaint, and stated and represented that the total loss was about the sum of $28,367.60, well knowing that the sound value did not exceed $5,000, and that the loss did not exceed $500. The plaintiffs demanded an itemized statement of the goods which the defendant claims had a sound value of not exceeding $5,000, and of the loss which defendant claims did not exceed $500. These demands were properly denied. The defendant’s claim is that the sound value of the goods covered by the policy at the time of the fire was only $5,000, and that the loss was only $500. It is not for the defendant to give the plaintiffs a statement of the property covered by the policy or of the items of loss.

The answer further alleges that pursuant to the provisions of the policy of insurance one of the members of the firm insured was examined under oath with respect to an adjustment of the loss, and

p. 388

gave false and fraudulent testimony with regard to the items of the loss, the nature of the lire, the stock on hand and its value and the loss thereon and his acts and the acts of his subordinates. Plaintiffs also demanded a bill of particulars of that part of the testimony so given which it is claimed was false and fraudulent, and in what respect it was false and fraudulent. This was denied. We are of opinion that it should have been granted. The facts make a case quite analogous to the questions presented in Taylor v. Security Mutual Life Ins. Co. ( 73 App. Div. 319 ) where we required a bill of particulars of the alleged false representations in an application for life insurance pleaded as a defense to an action on the policy; and falls’-directly within the authority of Douthitt v. Nassau Fire Ins. Co. ( 115 App. Div. 902 ) where an order requiring a bill of particulars of false and fraudulent statements with respect to a fire insurance policy pleaded as a defense was affirmed.

It is further alleged that by virtue of the provisions of the policy it was the duty of the insured to produce for examination by the defendant their books of account, bills, invoices or other vouchers, or certified copies if the originals were lost; and that on being-required to produce the same one of the firm, with intent to cheat and defraud the defendant, falsely and fraudulently neglected and failed to produce such books and papers and falsely and fraudulently produced false books and papers which were manufactured or prepared by him or on his behalf. Plaintiffs demand a bill of particulars of the books and papers which it is claimed the insured falsely and fraudulently failed, neglected and refused to produce ; and which of those produced were false, and which were manufactured or prepared, by one of the members of the firm or on his behalf. It is not very material which were manufactured or prepared by or on behalf of the insured, but it is material what papers and books produced were false in fact, and what books and papers the firm failed to produce, and under well-settled rules the plaintiffs were entitled to a bill of particulars thereof as demanded ; and since defendant charges plaintiffs with having manufactured or prepared some of the false statements there is no impropriety in requiring the defendant to specify the books and papers so claimed to have been manufactured or prepared.

p. 389

The answer further alleges that the sworn proof of loss contained false and fraudulent statements with respect to the loss. The plaintiffs demanded as part of the bill of particulars a copy of the proof of loss. Strictly speaking the plaintiffs’ remedy for relief in that regard is for a discovery, but since a bill of particulars is required with respect to matters which could not otherwise be obtained, there is no necessity of requiring the plaintiffs to make another application to the court and this should have been included.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion for a hill of particulars should be granted to the extent herein indicated, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

, Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion, with ten dollars costs. Settle order on notice.