Frankfurter v. Home Insurance

The trial court was authorized to direct an amendment of the complaint by increasing the amount for which judgment was demanded (Knapp v. Roche, 62 N. Y. 614 ; Baylies’ Code PI. 625, and cases there cited); and to direct a further amendment, after verdict, by adding an allegation to the effect that before the commencement of the action more than sixty days had elapsed since service upon the defendant of proofs of loss, the fact having been proved without objection, and the cause of action remaining unchanged. Code Civ. Proc. § 721 ; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646 ; Knapp v. Simon, 96 id. 284 ; Reedier v. Sayre, 70 id. 180. Upon appeal from the City Court of New York we may not inquire into the weight of the evidence (Gundlin v. Hamburg-Americcm Packet Co., 8 Misc. Rep. 291 ; Kujek v. Goldman, 9 Misc. Rep. 34 ; 29 N. Y. Supp.

The policy contained the following: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or hereafter shall make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. * * * ” It appeared in evidence, from the testimony of the insured, that subsequent to the issuance of the policy in suit he did effect other insurance upon property wholly covered by the defendant’s policy, to the amount of $1,500, without having secured the written approval of the defendant to such insurance. It was specifically ruled in Baumgartel v. P. W. Ins. Co., 136 N. Y. 547 , with reference to a policy containing the sarde provision which is hereinbefore set forth, that the policy was effectually avoided by subsequent insurance without the written approval of the insurer or its authorized agent, though the latter had orally assented. To pursue the inquiry, therefore, would involve a labor of mere supererogation. The fact that the plaintiff’s assignor, the insured, when the policy in suit was issued, informed the defendant’s agent of his intention to effect further insurance, to which the agent orally assented, cannot change the result for the reasons thereinafter stated with regard to the insured’s knowledge of the agent’s limited authority in the matter, and the case is plainly distinguishable from a class of cases referred to by counsel, in which it was held that knowledge of the insurer or of its agent, at the time of the issuance of the policy, of existing facts contrary to the terms and conditions

Nor do we accede to the proposition of the learned counsel for the respondent that a waiver resulted from the agent’s apparent oral recognition, after the loss had taken place, of the continued vitality of the policy with knowledge of the facts constituting the forfeiture.

Brody, a witness for the plaintiff, testified that on the day succeeding the fire Joerns, the defendant’s agent, admitted his knowledge of the fact of subsequent insurance, and stated that because of it he regarded the policy in suit as avoided. From the insured’s testimony it appeared that, after his interview with Brody, Joerns directed the insured to cause the property insured to be examined and his proofs of loss to be prepared, and that, acting upon such oral direction, he incurred expense in the examination of the property and the preparation of proofs. Of the facts thus in evidence the waiver is sought to be predicated.

The policy in suit, however, further provicled that “ no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except snch as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” Indisputably in the case at bar the agent’s authority was restricted to waivers in writing indorsed on or attached to the policy, and of this restriction the insured had, or must be presumed to have had, notice.

In support of his proposition the respondent’s counsel relies upon Pechner v. Phoenix Ins. Co., 65 N. Y. 195 , and Titus v. Glens Falls Ins. Co., 81 id. 410, cases which are to the

Our conclusion from the foregoing is that the exceptions which were taken to the refusal of the trial court to dismiss the complaint, and to its direction of a verdict for the plaintiff, present error for which the judgment must be reversed.

Bookstaveb and Pbyob, JJ., concur.

Judgments of the General and Trial Terms of the court below reversed and new trial ordered, with costs to the appellant to abide the event.