Baldwin v. Citizens' Insurance — 39 N.Y. St. Rep. 752

Majority

p. 752

Parker P. Baldwin, Resp’t, v. The Citizens’ Ins. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Insurance (Fire)—Condition as to ownership.

When an insurance company issues a policy with full notice that the building insured stands on leased ground the policy is good notwithstanding a condition that it shall be void if the subject thereof is on ground not owned by the assured in fee simple.

2. Same—Distance from other buildings.

A recovery may be had although the policy contained a condition or

p. 753

warranty that the building was detached a specified distance and it appears that there were other buildings within that distance where it is found that their presence did not increase the risk.

3. Same—Waiver.

A waiver of a condition in a policy may be established by a parol agreement although the policy calls for written endorsement on the policy itself.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

George B. Bonney, for app’lt; Dailey & Bell (James D. Bell, of counsel), for resp’t.

—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 if 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 fe'et.

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. Niagara Ins. Co., 68 N. Y., 434 ; Bennett v. Buchan, 76 id., 386; Richmond v. Niagara Ins. Co.. 79 id., 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 seventy 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. Gebhard Fire Ins. Co., 90 N. Y., 220 .

It was in the power of the company to waive a condition. Such waiver may be established by a parol agreement, notwithstanding the policy calls for written endorsement upon the policy itself. Steen v. Niagara Fire Ins. Co., 89 N. Y., 315 .

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.