Greenwich Ins. Co. of City of N.Y. v. Dougherty

• Decision Date: 11 February 1899
• Citation: 64 N.J.L. 716,42 A. 485
• Parties: GREENWICH INS. CO. OF CITY OF NEW YORK v. DOUGHERTY.
• Court: New Jersey Supreme Court

42 A. 485

64 N.J.L. 716

GREENWICH INS. CO. OF CITY OF NEW YORK

v. DOUGHERTY.

Supreme Court of New Jersey.

Feb. 11, 1899.

Case certified from circuit court, Union county; before Justice Van Syckel.

Action by Charles Dougherty against the Greenwich Insurance Company of the city of New York. Verdict for plaintiff, and the circuit court certified questions arising on an application for new trial.

The above-entitled cause having been brought to trial at the October term, 1897, of this court, upon the pleadings within contained, and the plaintiff and defendant respectively having adduced, upon such trial, the proofs within set forth, and the judge having charged the Jury as within stated, and the jury having rendered a verdict in favor of the plaintiff, and the court having granted a rule to show cause why such verdict should not be set aside and a new trial granted, which said rule is still pending and undetermined, I do now certify the said pleadings, proofs, charge, and rule to show cause to the supreme court for its advisory opinion upon the following questions of doubt and difficulty which have arisen upon such rule, namely:

(1) Was the policy of insurance upon which the plaintiff's declaration was founded forfeited or made void, as a matter of law, by reason of the fact that when, on the 23d day of April, 1892, the insurance effected by said policy was transferred "to cover similar property contained in the frame dwelling house No. 211 Delaware street, Elizabeth, N. J.," the house so referred to was, and thence until the fire continued to be, used as a combined store and dwelling, and not as a simple dwelling?

(2) Was said policy forfeited or made void by reason of the fact that at the time the same was purchased a portion of the property covered thereby was incumbered by the chattel mortgage given by Kate Dougherty to Ludwig Baumann, provided that at the time such policy was purchased the insured had neither notice nor knowledge of the existence of such mortgage?

Being in doubt as to the above questions, I hereby certify the same to be argued at the bar of the supreme court.

B. Van Syckel,

Judge of Union Circuit Court. Dated January 18, 1898.

Argued February term, 1898, before MAGIE, C. J., and GUMMERE and LUDLOW, JJ.

E. A. Day, for plaintiff.

R. V. Lindabury, for defendant.

PER CURIAM. The proper response to this first question certified depends on the law applicable to the following facts: On the 10th day of February, 1891, plaintiff purchased a policy of insurance from the defendant company, insuring him against loss by fire from February 9, 1891, to February 9, 1894, on his household furniture "while contained in the two-story and attic frame shingle-roof building and two-story frame tin-roof extension occupied as store and dwelling, situated No. 212 Delaware street, Elizabeth,...