Marsh v. Glens Falls Insurance

11 A.D. 398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Landon, J.:

If in fact the permanent insurance effected by the Otsego company’s policy was, at the time of the fire, retired “ on account of the hop-drying process or hazard,” then the defendant’s policy was in force. The Otsego company’s policy was, by its terms, retired “ during hop harvesting.” Two questions of fact arise: 1. Does “ hop harvesting ” cover the “ hop-drying process or hazard ? ” If so, did the fire occur during the t; liop-dryiug process or hazard ? ” The undisputed evidence was to the effect that Mrs. Withey’s crop of hops had all been gathered, placed in the hop house, dried there, and packed away in the storeroom in the hop house at least ten days before the fire, and that when the fire occurred the process of baling the hops for the market had begun. The following testimony was given and was not disputed: “ Ques. 2. Describe the steps taken in harvesting hops ? [Objected to ás immaterial and incompetent; that the contract is clear and unambiguous, and parol testimony is riot competent to vary it; also, that it is a question here about hop drying and not hop harvesting. Objection overruled and defendant excepted.] A.. In the first place they have to be picked, and then they are put in the kiln and dried, and from that they are pressed and baled; when they are baled they are ready for market; that is the usual steps taken, I think, by almost everybody.” The learned trial judge instructed the jury that if they should find that “ the baling and preparing the hops for market was a part of the harvesting of the hops, then, * * * the plaintiff is entitled to recover, provided there had been no settlement.” The defendant excepted. This was substituting a condition of liability different from the one expressed in the defendant’s policy. It was immaterial whether the baling of the hops was part of the hop harvesting, unless the baling was also part of the hop-drying process or hazard — and that did not appear. Apparently the hop-drying process or hazard preceded the baling by at least ten days.

'The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed, new trial granted, costs to abide the event.