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Baldwin v. Citizens' Insurance

15 N.Y.S. 587 Court N.Y. Gen. Term Decision date 1891-07-02 English

Delivered by Barnard, P. J.

Contents

Majority

p. 587
Baldwin v. Citizens’ Ins. Co.
(Supreme Court, General Term, Second Department.
July 2, 1891.)

Headnote

1. Insurance—Waiver of Condition—Evidence.
Plaintiff's insurance policy contained a provision that it should be void if the subject thereof was on ground not owned by the insured in fee-simple. Plaintiff’s broker, at the time of applying for the policy, stated to defendant’s assistant secretary that the land on which the house to be insured was situated belonged to the city of Brooklyn. The assistant secretary took time to consider the application, and then issued the policy to the broker. Held that, the policy having been issued with full notice that the building was on leased land, the condition requiring the inter- - est of the assured to be in fee was thereby waived.
2. Same—Avoidance of Condition.
Where an insurance policy contains a condition that the property insured shall be detached not less than 100 feet from other buildings, and the jury find that certain property insured was not detached the required distance, but that the risk to the property was not thereby increased, the insured, in case of loss, may recovei notwithstanding such condition.
3. Same—Parol Evidence.
A waiver of a condition of an insurance policy maybe shown by paroi evidence, though the policy calls for a written indorsement of the waiver thereon.
Appeal from circuit court, Kings county.
Action by Parker P. Baldwin against the Citizens’ Insurance Company. From a judgment for plaintiff, defendant appeals.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Hand Bonney and Pell & Jones, (Geo. B. Bonney, of counsel,) for appellant. Da iley & Bell, (James D. Bell, of counsel,) for respondent.

• The plaintiff owned a wooden building which stood upon land owned by the city of Brooklyn, and which he held in possession under a lease from the city. The policy contains a condition that all insurance shall be void is the subject thereof was on ground not owned by the assured in fee-simple, and that the policy contains a condition or warranty that the subject of the insurance was detached not less than 100 feet. As to the ownership of the land, there was proof given tending to show that the broker of the insured, at the time of his application, informed the assistant secretary that the land was owned by the city. ■ The assistant secretary took time to consider the question, and expressly sent the policy to the broker. When the jury found the fact that the company had issued the policy with full notice that the building was on leased land, the policy was good in this respect. Van Schoick v. Insurance Co., 68 N. Y. 434 ; Bennett v. Buchan, 76 N. Y. 386 ; Richmond v. Insurance Co., 79 N. Y. 230 . The condition as to the distance at which the insured building was detached was the subject of conflicting evidence, not as to the real distance being about 70 feet, but as to whether the risk was increased. The jury have found the fact that the risk was not increased by the barn, and the right to recover, notwithstanding a condition like this, where the risk was not increased thereby, is upheld in Burleigh v. Insurance Co., 90 N. Y. 220 . It was in the power of the company to waive a condition. Such waiver may be established by a paroi agreement, notwithstanding the policy calls for written indorsement upon the policy itself. Steen v. Insurance Co., 89 N. Y. 315 . The judgment should therefore be affirmed, with costs. All concur.

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