Naiman v. Niagara Fire Insurance

1 A.D.2d 946, 151 N.Y.S.2d 601, 1956 N.Y. App. Div. LEXIS 5676

Opinion

Judgment unanimously affirmed, with costs. No opinion. Concur— Rabin, Cox and Bastow, JJ.; Breitel, J. P., concurs in the following memorandum: I agree that the judgment should be affirmed. The only question which is troubling, is the refusal of insured to answer certain questions on the examination conducted under the policy (Happy Hank Auction Co. v. American Eagle Fire Ins. Co., 286 App. Div. 505, 510; Hallas v. North Riv. Ins. Co. of N. Y., 279 App. Div. 15, affd. 304 N. Y. 671). However, since the examination was not subject to judicial supervision, in the circumstances of this ease the company may not rely merely on the refusal to answer without bringing home to the insured and her counsel, upon whose advice insured was acting, that it would regard such refusal as a breach of the condition of the policy.