McNally v. Phenix Insurance

New York Supreme Court

McNally v. Phenix Insurance

16 N.Y.S. 696, 42 N.Y. St. Rep. 21, 62 Hun 620, 1891 N.Y. Misc. LEXIS 2188

DecidedDecember 14, 1891

StatusPublished

This text of 16 N.Y.S. 696 (McNally v. Phenix Insurance) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNally v. Phenix Insurance, 16 N.Y.S. 696, 42 N.Y. St. Rep. 21, 62 Hun 620, 1891 N.Y. Misc. LEXIS 2188 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Barnard, P. J.

This action is based upon a policy of insurance issued by defendant to the plaintiffs. The application described the property as ■ “ used [697]*697as a storage ice-house.” The policy, which was issued on May 2, 1885, describes the property as “occupied as a storage ice-house.” The building was destroyed by fire June 7, 1885. On the 8th of June, 1885, the company, without knowledge of the fire, gave a consent that the loss be paid to the mortgagee who held a mortgage on the property. On the 10th of June, 1885, preliminary loss papers were served. The premises were never occupied as a storage ice-house, or used as such. It was new and partly completed at date of policy. Mo certificate of a justice of the peace accompanied the loss papers. The loss papers were rejected by the company, and on June 7, 1886, this certificate of the justice was served with other loss papers. The action was commenced the same day. By the policy 60 days are given before the loss is payable after the full and complete loss papers are served. The action is therefore prematurely brought. The exception should therefore be overruled, and- judgment given for defendant, with costs. All concur.

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Barnard, P. J.

This action is based upon a policy of insurance issued by defendant to the plaintiffs. The application described the property as ■ “ used [697]*697as a storage ice-house.” The policy, which was issued on May 2, 1885, describes the property as “occupied as a storage ice-house.” The building was destroyed by fire June 7, 1885. On the 8th of June, 1885, the company, without knowledge of the fire, gave a consent that the loss be paid to the mortgagee who held a mortgage on the property. On the 10th of June, 1885, preliminary loss papers were served. The premises were never occupied as a storage ice-house, or used as such. It was new and partly completed at date of policy. Mo certificate of a justice of the peace accompanied the loss papers. The loss papers were rejected by the company, and on June 7, 1886, this certificate of the justice was served with other loss papers. The action was commenced the same day. By the policy 60 days are given before the loss is payable after the full and complete loss papers are served. The action is therefore prematurely brought. The exception should therefore be overruled, and- judgment given for defendant, with costs. All concur.

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Bluebook (online)

16 N.Y.S. 696, 42 N.Y. St. Rep. 21, 62 Hun 620, 1891 N.Y. Misc. LEXIS 2188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnally-v-phenix-insurance-nysupct-1891.