The Insurance Law Journal (Volume 6) (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: COURT OF APPEALS OF NEW.YOKK. DENNIS MAHER, Respondent, vs. HIBERNIA INS. CO., Appellant The phrase, in a policy, "occupied as a dwelling," is ordinarily a warranty that the building is, at the time of issuing the policy, occupied in that way only. The words having a fixed legal construction, the insured cannot in an action at law vary their purport by parol evidence. But parol evidence tending to ahov that the insured sought to have the phrase corrected to correspond with the facts, and was dissuaded by the insurer, may be admitted to estop the insurer from alleging the misdescription as a bar to recovery. Such evidence may also be received if it tends to make a case in equity for a reformation of the policy. Where the pleading contains no specific allegation of a mistake of fact, but avers that which shows that the parties were mistaken as to the effect of the language they used; Held, that this is sufficient averment of matter upon which a reformation of the contract may be based. Evidence showing that the insurer and insured meant to insure the building that was burned, but by a misconception as to the meaning and effect of the language, used terms in the policy which misdescribed it, and exonerated the company from legal liability, makes a proper case for reformation of the contract. An action may be brought for reformation of the contract, and for a recovery at the same time upon the contract when reformed, and it is not irregular to try such action before a judge and jury. The insured asserted, and swore in the preliminary proof, that the building was occupied as a dwelling only, which was not true. The policy provided that any fraud or false swearing should forfeit all claims under it. //'M, where the occupation was given in the same fo...