Durham v. Stuyvesant Insurance — 196 A.D. 924

Majority

p. 924

Theodore Durham, Respondent, v. The Stuyvesant Insurance Company of the City of New York, Appellant.

Headnote

Insurance — validity of co-insurance clause.

Appeal from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk thereof on the 14th day of June, 1920, affirming a judgment of the City Court of the City of New York, entered upon a verdict directed for the plaintiff, and affirming an

p. 925

order of the City Court denying plaintiff’s motion for a new trial, and from the judgment of the City Court thereupon entered.

It appearing from the evidence and from the concessions upon the trial that, assuming the operation of the co-insurance clause in-the policy in suit, the amount of the loss to be borne by the defendant would be the sum of $961.11, with interest from September 6, 1919, upon the authority of Aldrich v. Great American Insurance Co. ( 195 App. Div. 174 ), decided by this court in January, 1921, the determination of the Appellate Term and the judgment of the City Court thereupon entered are reversed, and the original judgment of the City Court modified by reducing the amount of said judgment as entered, including interest and costs, to the sum of $1,087.09, and as so modified said judgment and the order of the City Court are affirmed, with costs to the appellant in this court and in the Appellate Term. Present — Dowling, Laughlin, Page, Merrell and Greenbaum, JJ.; Page, J., dissenting on the ground, only, that the co-insurance clause in the policy is void. Determination and judgment thereupon reversed, and the original judgment of the City Court modified by reducing the amount of said judgment as entered to the sum of $1,087.09, and as so modified said judgment and the order of the City Court are affirmed, with costs to appellant in this court and in the Appellate Term.