Donato v. Granite State Fire Insurance

248 A.D. 736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

An action asking for reformation in certain particulars of policies of fire insurance and for money judgments against the insurance companies under such, policies so reformed was brought on for trial at the Trial Term. The disputed questions of fact were decided by the jury and the court adopted the verdict, but refused to make a decision or to pass upon findings submitted pursuant to section 440 of the Civil Practice Act. The judgment entered thereon is not supported by a decision. In this equity action this is error. (McKenna v. Meehan, 248 N. Y. 206; Callan v. Patane Company, Inc., 237 App. Div. 901; Bchildkraut v. Paino, 238 id. 846.) Judgment reversed on the law, without costs, and the case remitted to the trial court for decision and judgment. Lazansky, P. J., Carswell, Adel and Taylor, JJ., concur; Davis, J., dissents and votes to affirm, with the following memorandum: There was no necessity for reformation, the mistakes were chiefly those of a scrivener and were immaterial. They were changed by the court on the trial without objection or exception by defendants, except one where the question of fact was submitted to the jury. The trial proceeded on the theory of liability of defendants in an action at law in respect to whether the loss was caused by a preceding fire or an explosion. The course the trial took was adopted and accepted by all parties. There was not even a motion to dismiss that I can discover. Nothing but questions of fact were presented; and there was no occasion or necessity for the court to make findings after the coming in of the verdict which fixed the rights and liabilities of the parties.