Le Roy v. . the Market Fire Ins. Co.

39 N.Y. 90

Opinions

Pee Curiam.

This case is distinguished from Le Roy v. The Park Insurance Company in this, that by one of the conditions of the policy in this case, the representations contained in the survey referred to in the policy, are made part of the policy, and are declared to be warranties. This must be deemed assented to by the plaintiff, when he accepted the policy, and it is therefore the contract between the parties. If these representations are warranties, it was error to submit to the jury the question, whether the particulars, in which, at the time when this policy was made, the premises did not correspond with the description, increased the risk or not. The rule of the charge to the jury, in this respect s true as to mere representations, but not so of warranties these the insurer may insist upon according to their tenor.

To assume, then, that the survey referred to in this policy was a mere representation, and submit to the jury the question of materiality, was error, for the policy of these defendants was issued after this survey was made.

On the question whether the survey produced on the trial was made as a survey by the plaintiff, and was intended as the basis of the insurances to be effected, or, on the other hand, whether there was another survey which the plaintiff supposed was the survey referred to in the policy, was in doubt upon the evidence, but that did not warrant an assumption by the court, in the charge to the jury, that there was no warranty.

If the Market Insurance company—the defendants—made the insurance in good faith, in reliance upon the survey produced on the trial, while the plaintiff supposed another survey was referred to, it may be true that the minds of the parties did not meet in any contract of insurance.

A new trial may throw more light upon that question.

The judgment must be reversed, and a new trial ordered; costs to abide the event.