Irwin v. Westchester Fire Insurance

This action was brought to recover upon a $4,-000 fire insurance policy, covering the plaintiff’s “two and a half story shingled roof frame dwelling, and additions attached, .including foundations, and all permanent fixtures for heating and lighting, situate at 153 Grand street, Newburgh, N. Y.” The policy, which was in the standard form, was dated April 25, 1905, and was for three years from May 9, 1905, and was issued to the plaintiff by the defendant’s agents Shipp & Osborn, of the city to Newburgh. A fire occurred on the 12th day of November, 1906, causing damage to the dwelling and “additions” to the amount of $3,813.41, as found by the jury at the trial; $2,300 being the damage to the “additions,” and $1,513.41 the damage to the old or main building.

The defenses urged at the trial, and now, are that by reason of the violations of the charter of the city of Newburgh, and ordinances of the city passed for the purpose of preventing fires, and increase of fire-hazard, the building in question had been decreed to be a public nuisance by "the judgment óf a court of competent jurisdiction, and that the insurance under the terms of the policy had ceased, as the policy was voided (a) by the judgment of the Supreme Court of Orange county entered October 12, 1905; (b) by agreement of the assured to remove and take down the addition; (c) by increase of hazard, by means within the knowledge and control of the assured; (d) that the fire originated by explosion, and the greater part of the damage was done thereby, and, as the plaintiff did not attempt to separate the explosion damage from that by the fire, there can be no recovery; (e) that the policy was voided by reason of the "change in the interest, title, or possession of the subject of insurance, by legal process, judgment, and voluntary

The facts are substantially undisputed. Prior to December, 1904, the plaintiff had put up a three-story frame addition in the rear of her dwelling house, on Grand street, in the city of Newburgh. In December, 1904, a property owner of the city made application to the Supreme Court at a Special Term for a peremptory writ of mandamus directing the common council of said city to remove the three-storv addition from the plaintiff’s premises, because it exceeded the width authorized by the provisions of the charter and ordinances of the city of Newburgh governing the erection of frame additions to buildings within the fire limits of said city. In that proceeding, to which the plaintiff was not a party, the court adjudged the “addition” to be in violation of said ordinance, and a nuisance, and directed its removal by the common council. The writ of peremptory mandamus directing the common council to remove the said “addition” was granted on the 3d day of December, 1904. It appears that the city authorities neglected to obey the mandamus, and in the month of April, 1905, the plaintiff brought an action against the city of Newburgh to restrain the removal of the said "addition,” and to stay compliance with said mandamus. In September, 1905, judgment in that action was rendered which dismissed the plaintiff’s complaint upon their merits; the court finding as matters of fact and law that the “addition” in question was in violation of the city charter and ordinances, and was a public nuisance. In November, 1905, the plaintiff, by petition, asked the common council of the city to delay the enforcement of the writ of mandamus directing the abatement of the nuisance until May 15, 1906, promising that within that time she would remove the nuisance. She did not, however, abate the nuisance within the agreed time, and in July, 1906, a notice was served upon the plaintiff by the corporation counsel demanding that she immediately remove the “addition.”- Thereafter futile efforts were made on the part of the city authorities to employ men to abate the nuisance. Then proceedings were taken to punish the said authorities for contempt of court for not obeying the directions of the writ of mandamus. Finally, on the 9th day of November, 1906', a contractor in the employ of the city began the demolition of the structure, but before any considerable work was done, in fact, just as it was commenced, he stopped work because the plaintiff had not vacated the “addition.” Between November 9, 1906, and the occurrence of the fire, which was on November 13, 1906, plaintiff removed a part of her furniture from the “addition.” The defenses (set up in the answer) of fraud, false swearing, and arson were abandoned at the trial; the defendant relying upon the facts hereinbefore stated, in reference to the judicial condemnation of the “addition” as a nuisance, and the decree ordering its removal, and the plaintiff’s several promises to relieve the said authorities of the duty of removing said nuisance by abating it herself. The defendant’s claim, summarized, being that the building having been condemned as a public nuisance, and its removal having been ordered, and the plaintiff having agreed to take it down several

I fail to find in the able brief submitted by the learned counsel for the defendant any authority supporting their contention respecting the effect upon the plaintiff’s insurable interest in the buildings of the proceedings and decrees of the court respecting the character of the building known as the “addition,” and adjudging it to be a public nuisance. If the building had been actually removed before the fire, by reason of its having been adjudged a nuisance, or had collapsed or been destroyed, why, then, of course, it follows without argument that there could be no liability under the insurance policy, but, until there was actual physical destruction of the building, the defendant continued to be liable for any damage done by fire, so long as its policy of insurance remained in force. In other words, until the decree of the court was actually in effect by the destruction or removal of the building, and the abatement of the nuisance, the structure continued to be the property of the plaintiff, and her repeated promises to abate the nuisance did not deprive her of her interest therein as owner, so long as it remained upon her land, and was undisturbed. The principle in equity that the law will consider that done which ought to have been done does not apply in this action at law against this defendant, who was not a party in either of the other proceedings or actions affecting this structure. No matter how many judgments or decrees of the court there may have been adjudging the “addition” to be a nuisance, or how many promises the owner may have made to remove the structure, and abate the nuisance, it nevertheless continued to be her property until it was actually removed, or in some substantial manner physically disturbed, and so long as it stood upon the plaintiff’s land, attached to and a part of her main building, she had an insurable interest therein.

There is another ground, however, upon which the plaintiff’s right to recover seems indisputable. The first order of the court adjudging

I must find from the evidence that the defendant’s agents knew when the policy was issued that the “addition” which it covered had been declared by the court to be a nuisance, or, at least, that it was' seriously claimed that it was a public nuisance, and that proceedings were pending to have it so determined, and that thereafter, and during the life of the policy, and before the fire, they had ample opportunity to cancel the policy, or, at least, that part of the policy which covered the “addition,” and return to the plaintiff her premium. The act of the agents in issuing the policy upon the main building, and

I do not see how the judgment or order of the court declaring the “addition” to be a nuisance and directing its removal could increase the danger or risk of destruction or damage by fire, unless it be argued that such action furnished an incentive to the plaintiff to commit the crime of arson. There is no such claim in this case; the defense of arson having been abandoned at the trial. Hence the court must assume that the plaintiff was innocent of any connection with the fire or its origin, and, that being so, I can see no ground for the claim that the haza'rd was increased by the judgment of the court decreeing the “addition” to be a nuisance, and ordering its removal. The knowledge of the agents who issued this policy was the knowledge of the defendant, and it is the well-settled law that an insurance company will not be heard to deny liability upon a policy issued by it by claiming the existence of facts which would render it void, where it had full knowledge of such facts when the policy was issued. Robbins v. Springfield Fire Insurance Co., 149 N. Y. 477 , 44 N. E. 159 . The “addition” in question was a substantial frame building attached to and made a part of the main building, which was occupied by the plaintiff and her family on Grand street, and at the time of the fire it was in substantially the same condition as at the-time of the issuance of the insurance policy. The evidence shows that simultaneously with the breaking out of the fire there were some explosions in the building, and the defendant claims that it was the plaintiff’s duty to show what jpart of the damage was caused by the fire and what part was the result of the explosions. I think the evidence justifies the conclusion that practically all of the damage claimed by the plaintiff and which was assessed by the jury was done by the fire.

My conclusions are that the judgment and orders of the court, and the plaintiff’s promises respecting the character of the “addition” and its removal, did not change the plaintiff’s interest in, title to, or possession of the structure, so long as it remained undisturbed upon her premises, and attached, as it originally was, to the main building, and, moreover, that the defendant is bound by the knowledge of its agents respecting the character and results of the litigation concerning the said “addition,” and, having issued the policy with such knowledge, cannot now deny its liability on that account, and that the plaintiff is entitled to judgment for the sum of $3,813.41, and I accordingly deny the defendant’s motion to dismiss the complaint, and I direct a

Defendant’s motion for a new trial denied. Defendant to have a stay of 30 days, and 60 day-s to make and serve a case on appeal.