Nat'l Wall Paper Co. v. Associated Mfrs' Mut. Fire Ins. Corp.
| Decision Date | 02 June 1903 |
| Citation | 67 N.E. 440,175 N.Y. 226 |
| Parties | NATIONAL WALL PAPER CO. v. ASSOCIATED MANUFACTURERS' MUT. FIRE INS. CORP. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by the National Wall Paper Company against the Associated Manufacturers' Mutual Fire Insurance Corporation. From a judgment of the Appellate Division (77 N. Y. Supp. 1133) affirming a judgment for plaintiff, defendant appeals. Affirmed.
Archibald C. Shenstone, for appellant.
Moses Weinman and Abraham Benedict, for respondent.
This action was brought to recover upon a fire insurance policy issued by the defendant upon the contents of the plaintiff's store in Pittsburg, Pa. The policy ran from noon of November 12, 1897, to noon of November 12, 1898. The fire from which the plaintiff suffered loss commenced 12:40 p. m. February 18, 1898, and resulted in a total destruction of the plaintiff's store and contents. The proofs of loss were served upon the defendant at 11:40 a. m. April 20, 1898. The defends interposed was to the effect that the proofs of loss were not served ‘within sixty days after the fire,’ the time required by the policy.
Upon the trial, evidence was given on behalf of the plaintiff to the effect that, while the fire broke out shortly after noon on the 18th of February, it continued to burn until the 21st, at which time there was still a considerable blaze, 10 or 15 feet in height. At the conclusion of the plaintiff's evidence, the defendant's attorney moved for a dismissal of the complaint upon the ground that the plaintiff had failed to make out a cause of action; claiming that, as matter of law, the policy meant within 60 days after the commencement of the fire. The court denied the defendant's motion, remarking: The plaintiff's counsel then moved for a direction of a verdict in his favor, and thereupon it was stipulated that the interest upon the plaintiff's claim is correctly computed at $410.44, and that the total amount was $2,393.28. To this the court remarked to the effect that a verdict could not be directed for the plaintiff if the defendant wished to go to the jury. Thereupon the defendant's counsel again asked the court to direct a verdict in his favor, and then the court directed a verdict in favor of the plaintiff for the amount agreed upon. It thus appears that the evidence submitted as to the duration of the fire was, by the action of the attorneys, submitted to the court for its determination; and, a verdict having been directed in favor of the plaintiff, that question of fact must be deemed to have been determined in its favor. Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130;Sutter v. Vanderveer, 122 N. Y. 652, 25 N. E. 907;Reck v. Phenix Ins. Co., ...
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