Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-03-02
Superior Court.

Char les H. Dsipan vs. The Ciiy Fire hs.~~ancs
ComP0Sx- case commenced on Tuesday last,
and was brought to a close Saturday afte rnooR,
after r}gfd and patient investigation into all the
facts attendant on the controversy Of five days We
nave not space to go through all the details, but the
following are the main facts of the
In the month of May, 1888, the plaintiff effected
an insurance ae three different Offices, the city,
bus stock OF hardware, ct cetera, Of $1,000 each In
the month OF November a 6re occurred, which was
subdued without destroying the premises but when
the plaintiff came to examine his stock which con-
sisted of plate, cut glass fine cutlery, bronze and
ormolu lamps, candelabras, ct cetera he found the
articles deterioated in value that he came upon
the Company for total loss. The insurers called
upon him for his preliminary proofs, and the usual
afidavs to their truth, which is required by the
conditions of their policies. Here occurred the
first difficulty. The plaintiff had kept no books
himself, and those which had been kept by his shop
men, in such state of confusion and intricacy
that it was next to impossible for any person to have
made a correct statement thereuponI A statement,
however, was made, by which 1t appeared that the
stock hand, at the time of the fire was estimated
at upwards of $50 600 The insurers refused to re-
ceive this estimate and the plaintiff thereuPon offer
ed to give them to all his'books and papers,
and besides, he Immediately engaged an accountant
to go over his books, and make another and more
estimate of his stock, with aview Of coming
to amicable settlement. The plaintiff also offered
to leave the matter to referee, but this being re-
fused he resolved to fall back on his legal rights
The insurers, however, Immediately resorted to ra-
Their high handed measure, for they filed bill in
Chancery to prevent his having any control over
the salvage, to touch it for 70 days. xAfter
this litigation had been got rid of a sale b. Jon
took place, when the damaged goods weres ol,NIrd
brought upwards of $4,000. The plaintiff then re-
duced bis estimate Of loss to Sl5,73, which gould
leave him a sufferer in nearly SlOCS, PROV k;ss.
three policies were paid in full.
On Saturday Judge Oakley charged the Jury @4th
great clearness and perspicuty, on the law and the
general principles Of polity which must govern
them in coming to decision on the matter. At the
outset of his observations he said that the rules
which attached to all fire policies, made it in
cumbent On the insured to observe certain cOndi-
tions, they would lose the benefit of their ndem-
nifty. With respect to these conditions, he thought
very few persons who insured ever took the pains
to understand them. One of these conditions was
that the insured must maintain good faith. He must
in Of loss, produce certain certificates, give up
all books and vouchers, and any thing that would
go in the evidence of his claim If in rendering these
proofs, the party is guilty oany false swearing, he
shall forfeit all right to recover that which
otherwise he would have equitable claim for
We find this condition part of the contract, and it
will be for you to say by your verdict whether this
wilful false swearing perpetraed by the plain
tiff.
In coming to a decision, said his Honor, on this
matter, the jury will have two questions to decide
First is the plaintiff entitled to recover! and
ondly, to what extent! 1t is not gentlemen denied
by either party that, in the first set OF preliminary
proofs, very great errors were committed; and IN
the second, il is admitted some errors certainly
isted But it does not follow from that that the de-
PENDANT knowingly swore to the over valuation,
which you must believe, if you convict him of afrau-
9th of December, W hen these proofs prepared,
was Delavan conscious he was making false state
ment Ii is not enough to show that the statement
false, but il must be shown by undeniable evil
dence, that he knew it to be false. Did he connive
at these errors for the purpose OF setting up raudu
lent claim, as to induce the insurers to make him
alarger allowance than they otherwise would! And
here gentlemen he is to be held to the same accoun
liability his affairs, ordinary men, al
though il is very apparent that he is no man OF bu-
siness; conducted it with extreme looseness, and
hasa a,t,ta
disbursements, were all mingled together. The
very fact Of his employing Tyrrell to write up his
books and the state of confusion which that witness
to, shows that he had not the system Ordi-
nary knowledge of &C counts, which in business
usually possess The very fact that he referred to
these loose counts imperfect book and struggling
their referees, would go to show that no fraud
intended, because any man must have known that
thes, expositions would have led to instant de-
lection, and would have subjected him to all the in
convenience, &c. which have since arisen.
His Honor then took brief review Of the main
facts adduccd on either side, and observed that in
such cases floss, was not easy matter to arrive
al the precise sum with any degree OF certainty Ii
must be matter for estimate, and the plaintiff, If
entitled to recover at all, was entitled TO pretty
liberal view Of his case. Ii was true, that some
careessness had been exhibited, but he ought not to
suffer for that Yet, the other hand, il the jury
should find that he had been outrsgeously careless,
why. they must not permit him to profit by his own
carelessness.
You have had, said his Honor. the parties before
YOU who inspected the books and valued the stock
found after the fire, and from their judgments, wide
as they are apart, you must come to some conclu-
sion. One puts il as low as SSO0O, and another
high $4,000. Its extraordinary screpancy,
and one that cannot account for.
With respect to the sale by auction, think, said
his Honor, that the plaintiff had the right to effect
IL. The policy imposed no condition which would
prevent the plaintiff having the control Of his own
stock, and although the company have right to
pair the losses in any way they may deem most add
vet saw 10 I'm hall
await our pleasure before you dispose Of what has
been saved.
After few unim portant directions to the Jury
the latter were locked up in the court room, with
the books and papers, for about hour, when they
delivered the following verdict:-Fsr the plaintiff
damages S2339 SO, and Q cent costs.
Counsel for plaintiff, ]. Prescott Hall, Lord, Jr
and - Sandford. For defendants, Chas. O'Con-