Johanna Hayes, Respondent, v. The Saratoga and Washington Fire Insurance Company, Appellant

Johanna Hayes, Respondent, v. The Saratoga and Washington Fire Insurance Company, Appellant. Fire insurance—error of an agent in writing in an application statements correctly made by the insured—a consent to a transfer of a policy is as effectual as if a new policy were issued. Where an applicant for a policy of fire insurance, who is able to read print, but not writing, gives true answers to the questions put to him by an authorized agent of the insurance company, and the agent inserts false answers in the application, the falsity of such answers is not a defense to the policy. A statement of the value of the insured premises contained in the application is ordinarily a matter of opinion. After an insurance company had issued to one Connery, the owner of a building erected on leased land, a policy of fire insurance upon such building, a receiver of Connery’s property was appointed in proceedings supplementary to execution. Subsequently the insurance company made an indorsement on the policy that it had been transferred to the receiver. Thereafter the receiver sold the building to one Brusnihan, who sold it to one Hayes. The several transfers were reported to the insurance company, which directed the policy to be sent to it. The policy was sent, but was returned by the insurance company with directions to have Connery sign his name on the back. This was done and the policy returned to the insurance company, which then indorsed upon the policy a consent that the interest of Connery be assigned to Hayes. Held, that the insurance company should be deemed to have consented to continue the insurance upon the building with Hayes as the owner, as eifectually as though a new policy had been issued to Hayes. Appeal by the defendant, The Saratoga and Washington Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 9th day of April, 1902, upon the decision of the court rendered after a trial at the Saratoga Special Term. One Randall is the agent of the defendant, a co-operative fire insurance company, and has authority to solicit business, make out applications for insurance in defendant company, deliver policies and collect premiums. Michael Connery in 1899 was the owner of a building situated on leased land in Saratoga, N. Y., on which building were three policies of insurance aggregating $4,100. In April or May, 1899, Randall came to Connery and said that he had had some talk with one Burke, a collector of premiums for defendant, and also with a brother of Connery in regard to taking out more insurance on Connery’s building. Connery told Randall that he had insurance enough; that it cost him too much to keep his insurance up, and that if there was a fire he would not get anything. Randall told him that it was all right and that it would only cost half as much in his company as in the other companies. Connery can read print some, but cannot read writing. He consented to take a policy in the defendant company and signed the application produced by Randall. The evidence is sufficient to sustain a finding that Randall asked Connery how much insurance was on the property and Connery replied that he did not know exactly but would show him the policies and that he did show him the policies and Randall looked them over; that he also told Randall that Mr. Hayes had a mortgage on the property of $1,000 and Mr. Hefferman one of $800; and that a couple of days later Randall came back to Connery and asked him if the building was on leased land, and whether he had ever had a loss by fire; and that the questions were correctly answered. Randall wrote out the answers to the application signed by Connery, and the material questions and answers are as follows: “ 1. Are you the sole and undisputed owner of the property ? No. 2. If a building, do you own the land on which it stands ? No. ■ “ 3. Incumbrance — If any, state amount, and to whom ? $1,000, James Hayes. “ 4. What is the present cash value of the property to be insured ? $7,000. 5. How much other insurance on the property ? $1,000. “ 6. In what companies, and at what rate ? Commercial Union.” This application, although made in 1899, was dated by Randall April 11, 1897. On or about May 1, 1899, the defendant executed and delivered to Connery a policy of $1,500. On or about May 1, 1900, a renewal policy was executed and delivered to him. The premium on each of these policies was paid to Burke for the ■defendant. Thereafter a judgment was obtained against Connery and an execution thereon was returned unsatisfied. On. September 28, 1900, one Frank M- Jenkins was appointed receiver in proceedings supplementary to said execution. On the 18th day of October, 1900, the secretary of the defendant indorsed on the policy “ Said Policy is this day transferred to Frank M. Jenkins, receiver.” Thereafter and on October 31, 1900, Jenkins, as receiver, sold the building to James T. Brusnihan, and on the following day Brusnihan sold the building to the plaintiff. The several transfers were reported to said Burke, a collector for the defendant, and at whose place of business Randall had an office when in Saratoga. Burke telephoned to the home office of the defendant reporting the several transfers. Burke was answered from the home office either by Allen, secretary of the company, or by Randall who seems to have spent a portion of his time in the ■defendant’s home office. He was told from the home office to send the policy to them. Burke obtained the policy from Connery and sent it to the defendant. The defendant remailed it to Burke with directions to have Connery sign his name on the back. This was done, and the- secretary of the company then, in wilting on the ■policy, consented that the interest of Michael Connery be assigned to Johanna Hayes, the plaintiff. On the 18th day of March, 1901, the building was wholly destroyed by tire. The total insurance-thereon amounted to $5,600. The plaintiff claimed that the total loss was $4,100, and the insurance companies, other than the defendant, paid their proportionate amount of such loss, aggregating $2,829.57.' The defendant refused to pay its proportionate part of said loss, and this action was brought to recover the balance of $1,071.43. Judgment was rendered against the defendant for that ■ amount and costs. William S. Ostrander, for the appellant. William D., McNulty, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: The applicant for insurance could not read writing. In response ■to. the-questions propounded by the representative of thé defendant ■he gave truthful answers.' Where the insured gives true answers ' to the questions put to him as á basis of insurance and an authorized agent of the insurance company inserts in the application false answers, the company and not the insured is responsible for then-falsity ; and their falsity is no defense to an action upon the policy. (O'Brien v. Home Benefit Society, 117 N. Y. 310; Sternaman v. Met. Life Ins. Co., 170 id. 13; Mead v. Saratoga & Washington Fire Ins. Co., 81 App. Div. 282.) It does not appear other than from the written application that the applicant made any statement in regard to the value of the building. Ordinarily a statement of value is a mere matter of opinion. (Dacey v. Agricultural Ins. Co., 21 Hun, 83; Smith v. Home Ins. Co., 47 id. 33.) The indorsement on the policy by the defendant consenting to its transfer by Connery to plaintiff was made after information of the several transfers of the building and in the face of its former recognition of Jenkins as receiver as the Owner of the policy. • The policy was assigned in the manner directed by the defendant. Plaintiff was then the actual owner of the building and defendant should "be held to have consented to continue the insurance on the building with the plaintiff as the owner, as effectually as if a new .policy had then been written in her name. (Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526.) Judgment should be affirmed, with costs. Judgment unanimously affirmed, with costs.