Walker v. American Cent. Ins. Co.

• Decision Date: 09 October 1894
• Citation: 143 N.Y. 167,38 N.E. 106
• Parties: WALKER v. AMERICAN CENT. INS. CO., ST. LOUIS.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 167

38 N.E. 106

WALKER

v.AMERICAN CENT. INS. CO., ST. LOUIS.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, fifth department.

Action by William H. Walker against the American Central Insurance Company, St. Louis, on a fire insurance policy. From a judgment of the general term (21 N. Y. Supp. 751) affirming a judgment for plaintiff, defendant appeals. Affirmed.

That part of defendant's answer pleaded as a counterclaim is as follows: ‘And the defendant further alleges, upon information and belief, by way of counterclaim, that on or about the 14th day of February, 1890, this defendant, through its agent, R. V. Callan, at Caledonia, N. Y., by its policy of insurance numbered 330,064, insured the plaintiff for the term of one year from the 17th day of February, 1890, at noon, to the 17th day of February, 1891, at noon, to an amount not exceeding $1,000 on his stock of merchandise consisting of dry goods, groceries, and such articles as are usually kept in a country variety store, all contained in his two-story metal-roof frame store situate on the north side of Main street, village of Caledonia, N. Y. That the said plaintiff accepted the said policy of insurance, and the same was in force during the time therein stated. That while said policy was in force, and prior to the 1st day of December, 1890, said defendant discontinued the agency of the said Callan at Caledonia, and transferred the same to one E. M. Harmon at Le Roy, N. Y., of which change of agency the said plaintiff had notice on or about the 20th day of December, 1890. That about the date last aforesaid the said Harmon, acting as such agent of the defendant, proposed to the plaintiff to increase his insurance on his said stock beyond the sum of $2,000, which the plaintiff was then carrying thereon, which the plaintiff declined to do. Afterwards, and on or about the 12th day of January, 1891, the said plaintiff and the said defendant, through its said agent, E. M. Harmon, entered into a parol agreement, in and by which the said plaintiff gave the said agent permission to renew the insurance of $1,000 held in this defendant company upon the said property for the period of one year commencing at the expiration of its former policy, bearing date February 14, 1890, to wit, from and after the 17th day of February, 1891, said renewal to run for one year from the last-named date, which renewal said agent then and there agreed to make. That no contract was ever made with the said plaintiff by or on behalf of this defendant for any additional insurance by it upon said property described in the complaint, but the only contract made bearing upon the policy set forth in the complaint was the one hereinabove stated. That, acting under the said agreement for the renewal of said policy of February 14, 1890, and under the misapprehension of the agent of the said defendant that the said policy expired on the 1st day of February, 1891, instead of the 17th day of February, 1891, the said Harmon, as agent for the defendant, executed and sent to the plaintiff the policy set forth in the complaint, both the said agent and the said plaintiff intending at the time that the same should be sent by the defendant and received by the plaintiff as a renewal of the policy of insurance issued by the said Callan, as agent of this company, to the plaintiff. That the issuing of said policy mentioned in the complaint to take effect on the 1st day of February, 1891, was done under a misapprehension and mistake of fact as hereinbefore stated, and without any intention on the part of the defendant, through its agent, or on the part of the plaintiff, that the insurance on the said stock of the plaintiff by the defendant should be...