Smimmo v. American Union Insurance

Appellate Division of the Supreme Court of New York

Smimmo v. American Union Insurance

26 A.D.2d 861, 273 N.Y.S.2d 895, 1966 N.Y. App. Div. LEXIS 3361

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 1966

StatusPublished

Cited by2 cases

This text of 26 A.D.2d 861 (Smimmo v. American Union Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smimmo v. American Union Insurance, 26 A.D.2d 861, 273 N.Y.S.2d 895, 1966 N.Y. App. Div. LEXIS 3361 (N.Y. Ct. App. 1966).

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Opinion

Memorandum by the Court. Appeal by plaintiff from a judgment of the Supreme Court entered upon a verdict of no cause of action, in an action to recover upon a fire insurance policy. There was ample circumstantial evidence, which the jury was entitled to credit, from which it could legitimately infer that plaintiff, then 92 years of age, set fire to the dwelling house, which was the subject of the insurance and which was occupied in part by him and in part by his son and his son’s family. The son testified that a month before the fire his father said to him that if the son did not move out of the house he would burn it down. A neighbor testified that while the fire was in progress, plaintiff exhibited to her a deed and a fire insurance policy and asked her to tell him the amount of the insurance, and in the course of the same conversation said that he “ told John [his son] to go or he would burn him out”. The same witness said that clothing and a television set were removed from plaintiff’s part of the house shortly before the fire. Plaintiff’s son and other witnesses testified that plaintiff was at the scene minutes before the fire and if the jury accepted this proof it was then entitled to give damaging effect to plaintiff’s denials of his proximity. There was substantial proof serving to eliminate at least the more common causes of accidental fires. As the second ground of its defense, defendant adduced proof, which the jury could well credit, of plaintiff’s misrepresentations after the fire, within the provisions of the policy in such ease voiding the insurance. The verdict was fully warranted by the evidence and we find no error in the charge to the jury or otherwise in the conduct of the trial. Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Memorandum by the Court. Appeal by plaintiff from a judgment of the Supreme Court entered upon a verdict of no cause of action, in an action to recover upon a fire insurance policy. There was ample circumstantial evidence, which the jury was entitled to credit, from which it could legitimately infer that plaintiff, then 92 years of age, set fire to the dwelling house, which was the subject of the insurance and which was occupied in part by him and in part by his son and his son’s family. The son testified that a month before the fire his father said to him that if the son did not move out of the house he would burn it down. A neighbor testified that while the fire was in progress, plaintiff exhibited to her a deed and a fire insurance policy and asked her to tell him the amount of the insurance, and in the course of the same conversation said that he “ told John [his son] to go or he would burn him out”. The same witness said that clothing and a television set were removed from plaintiff’s part of the house shortly before the fire. Plaintiff’s son and other witnesses testified that plaintiff was at the scene minutes before the fire and if the jury accepted this proof it was then entitled to give damaging effect to plaintiff’s denials of his proximity. There was substantial proof serving to eliminate at least the more common causes of accidental fires. As the second ground of its defense, defendant adduced proof, which the jury could well credit, of plaintiff’s misrepresentations after the fire, within the provisions of the policy in such ease voiding the insurance. The verdict was fully warranted by the evidence and we find no error in the charge to the jury or otherwise in the conduct of the trial. Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Bluebook (online)

26 A.D.2d 861, 273 N.Y.S.2d 895, 1966 N.Y. App. Div. LEXIS 3361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smimmo-v-american-union-insurance-nyappdiv-1966.

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