O'Connor Transportation Company, Inc., Appellant, v. Glens Falls Insurance Company, Respondent

O’Connor Transportation Company, Inc., Appellant, v. Glens Falls Insurance Company, Respondent. Insurance — policy insuring vessel against fire — breach of warranty —• waiver. O’Connor Transp. Co., Inc., v. Glens Falls Ins. Co., 198 App. Div. 136, affirmed. (Argued May 5, 1922; decided May 31, 1922.) Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 8, 1921, sustaining defendant’s exceptions ordered to be heard in the first instance at the Appellate Division and granting its motion for a new trial. The action was to recover upon a policy of fire insurance issued by defendant and covering defendant’s steamboat. The complaint alleged that defendant had denied liability for the loss on the ground that the policy was void for violation of the • so-called vessel fire register warranty attached to the policy as a purported rider to the effect that the rules and requirements of the vessel fire register had and should be complied with and observed and that its certificate had been obtained. The complaint further alleged that said rider was null and void under section 121 of the Insurance Law; that the rules and requirements of the vessel fire register had been observed, but through oversight its certificate had not been obtained; that at the time of the issuing of the policy defendant knew, or had notice, that such certificate had not been obtained and accepted payment of the premium and waived the provisions of the purported rider. The answer denied that the rider was invalid, that the rules and requirements of the vessel fire register had been complied with, or that the obtaining of the certificate had been waived, and alleged, as a defense, the violation of the so-called vessel fire register warranty. Thomas C. Burke for appellant. Parton Swift for respondent. [MAJORITY] Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion. Concur: His cock, Ch. J., Hogan, Cardozo, McLaughlin and Andrews, JJ. Dissenting: Pound and Crane, JJ.