Fidelity & Casualty Co. v. Child

102 N.Y.S. 1136

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 4, 1907
• Status: Published

Opinion

PER CURIAM.

Under the terms of both policies the company had the right to examine bIte books of the assured, and the assured was mquired upon request to furnish a statement thowing the amount of compensation paid to imploy~s, which amount was to be the basis for ~omputing the premiums due under the policies. l'he defendant has paid all but 87 cents of what ~e considers to be due, and plaintiff brings this iction to recover $222.59 additional premiums, Eor which sum judgment was rendered, and lefendant appeals. To establish its right to these additional premiums, plaintiff was bound 10 show clearly that the pay rolls of the delendant were $5,743.22, and that under its contract the defendant's premiums were to be computed upon that sum. There is no other issue in the case. Defendant contends that the schedule in both policies is confined to "structural ironworkers," bridge building being expressly excepted, and that structural ironwork does not contemplate ornamental ironwork, such as railings and fire escapes. His testimony is to that effect, and was not contradicted. Furthermore, the testimony of the plaintiff did not conclusively show that the sum of $5,473.22 was the proper sum upon which to base premiums, while the testimony of defendant is that $3,009.60 would seem to be the better established sum. The judgment should be reversed, and new trial ordered, with costs to appellant to abide the event.