Beaudry v. Massachusetts Bonding & Insurance

260 A.D. 871, 22 N.Y.S.2d 866, 1940 N.Y. App. Div. LEXIS 5160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1940
• Status: Published

Opinion

In an action brought pursuant to former section 109 of the Insurance Law, as that section read prior to January 1, 1940, to recover property damages sustained as the result of blasting operations carried on by the defendant’s assured, judgment for defendant unanimously affirmed, with costs. The proof was sufficient to justify the findings of the learned trial court that the insured had breached the terms and conditions of the policy by failing to give notice of the accident and by lack of co-operation thereafter and up to the time of the repudiation of the policy by the defendant in June, 1934. This repudiation occurred in connection with a totally independent action. The defendant in its letter of repudiation did not waive, either expressly or impliedly, the defenses available to it in the present action. Nor may the doctrine of estoppel be invoked by the plaintiffs, since they were not prejudiced. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.