Nugent v. Rensselaer County Mutual Fire Insurance

Citations

• 106 A.D. 308
• 94 N.Y.S. 605

Syllabus

<p>Hire insurance — waiver of the defense that the insured property was mortgaged — the mortgagor has an insurable interest — what is a violation of a provision against false swearing—failure to attach a copy of the policy to a complaint which'alleges that it was attached thereto.</p> <p>In an action brought to recover upon a policy of fire insurance which the defendant claimed to be void because the insured property was incumbered by a chati el mortgage, it appeared that' after the fire the defendant, with kno wledge of the existence of the chattel mortgage, directed the plaintiff to prepare proofs of loss, which he did at some expense; that, at the request of the defendant, he subsequently filed corrected proofs of loss, the procuring of the correction- involving a journey of six miles; that on the return of the corrected pfdtifs of loss the defendant notified the plaintiff to attend a hearing on his claim; that the plaintiff, at some additional expense and another journey, attended the hearing and was examined in reference to the fire, the chattel mortgage and the amount of his loss; that thereafter the defendant for -the first time asserted that the policy was void and rejected his claim.</p> <p>Held, that the defendant had, as a matter of law, waived any right .which it might have had to assert that the policy was void because of the existence of the chattel mortgage.</p> <p>A person who owns and is in possession of personal property which is incumbered by a chattel mortgage lias an insurable interest therein.</p> <p>A provision in a policy of fire insurance that it shall be void in case of any false ■ swearing by the assured touching any matter relating to the-insurance or the subject thereof, whether before or after a loss, only requires good faith and honest dealing on the part of the insured; a mere misstatement of the amount of the loss based upon an erroneous estimate of value will not avoid the policy; in order to have such effect the misstatement must b