Roby v. American Cent. Ins. Co. of St. Louis

Citation120 N.Y. 510,24 N.E. 808
PartiesROBY v. AMERICAN CENT. INS. CO. OF ST. LOUIS.
Decision Date03 June 1890
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from a judgment of the general term of the supreme court, in the fifth judicial department, affirming a judgment entered on a verdict, and also affirming an order denying a motion for a new trial.

Action upon an insurance policy issued by the defendant on the 26th of January, 1882, whereby it insured the firm of William Corris & Co. in the sum of $2,000, for the period of one year from said date, against loss or damage by fire to their stock, ‘fixtures, tools, and machinery, as manufacturers of wood-work for carriages, contained in’ a certain building in Rochester. Said firm was composed of William Corris and the plaintiff; and in September, 1882, the firm name was changed to the Rochester Wheel Company. A dissolution of the copartnership was then in contemplation, but the business was continued under the management of the plaintiff, without any change in the books, and with the same machinery, until in January, when there was a formal dissolution. The property insured was partially destroyed by fire on the 8th of January, 1883, and in March following William Corris assigned his interest in the firm assets to the plaintiff. The defendant pleaded in its answer that there had been a change of title to the property insured withoutits consent; that the risk had been inceased by repairs and alterations without its knowledge; that the proofs of loss were defective; and that the fire was caused ‘by said repairs, alterations, or additions, or some one of them.’

A. J. Abbott, for appellant.

William N. Cogswell, for respondent.

VANN, J., ( after stating the facts as above.)

The policy in question provided that if the risk should be increased by any cause known to the insured, unless notice thereof should be given to the defendant, and its consent indorsed upon the policy, or if there should be any change of title to the property insured without such consent, the policy should thereupon cease to be binding upon the company. It further provided that the working of carpenters, plumbers, or other mechanics in building, altering, or repairing the property, building, or premises named in the policy should avoid the same unless permission for such work were given in the usual way. Whether there was an increase of risk, within the meaning of the policy, was a question of fact that was duly submitted to the jury. They are presumed to have found against the defendant upon that issue, and, as their conclusion is supported by sufficient evidence, it cannot be reviewed here. Hynes v. McDermott, 91 N. Y. 451, 464.

We think that there was no change of title to the property insured, because the mere dissolution of a firm does not destroy the joint interest of the copartners in the partnership property, nor make them tenants in common. Murray v. Mumford, 6 Cow. 441;Tarbell v. West, 86 N. Y. 280, 290;King v. Leighton, 100 N. Y. 386, 392, 3 N. E. Rep. 594; Dresser v. Insurance Co., 45 Hun, 298; Story, Partn. § 325; Lindl. Partn. (5th Ed.) 218. The copartnership continued, in a limited sense, with reference to past transactions and existing assets. While the power previously possessed by each partner to bind the other was determined, that which was partnership property before the dissolution continued to be such afterwards until one of the copartners sold his interest to the other.

The motion to nonsuit was based upon many grounds, some of which are too general to require attention, and none of which need further notice, except the following: (6) That the proofs of loss furnished the defendant show upon their face that the fire originated through friction in the exhaust fan, which the proofs on the trial show was put into the building where the property insured was located after the policy was issued, and without the consent of the defendant as provided by the policy.’ The defendant excepted to the denial of said motion, and also to the instruction of the court to the jury that ‘if the company, after it had notice of the repairs or alterations upon which it now relies to defeat the policy, required, by virtue of the policy, any action on the part of the plaintiff by which he was subjected to inconvenience or expense, it has waived this forfeiture.’ The plaintiff stated in the proofs of loss that ‘the fire originated through friction in the exhaust fan, as deponent verily believes.’ The exhaust fan consisted of a circular iron case about four feet in diameter, with a wheel within described as a ‘paddle-wheel with broad blades.’ This wheel, by rapid revolution, created a powerful current of air that carried away the shavings. The evidence showed that such machines are largely used for that object; that they are introduced for ‘the very purpose of their safety;’ and that, while they are liable to friction, as all machinery is, ‘as a whole they decrease the risk.’ Defendant's agent, whose authority is not questioned, testified that he...

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