New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-03-05
INTERESTING INSURANCE CASE.

INTERESTING INSURANCE CASE.
SUPREME COURT. IID DIsTkICT-Before the Hon. Juscs
BRowS-NEwBuRGH Feb. Ii, 1886
At the Circuit Term of the Supreme Court now
being held here, Judge Brown presiding has just been
tired the case OF Franklin and Theodore Townsend
act the Northwestern Insurance Company of OswegO,
f, the lees of a cotton mill at Cornwall in this county
in the Fall Of 1852 and verdict rendered for the
plaintiffs for the full amount of the policy OF $4,000
and interest This was tried about two years
since before Judge Brown at Goshen, In this county,
with tie same result and carried by the defendants on
bill of exceptions to the Supreme Court Of this Dis
tiict in General Term where the judgment was al
fImed, and aiterwaId to the Court ot Appeals which
found e1or in the admission OF certain testimony by
he Honor the judge and accordingly set tho verdict
aside but granted the plaintiffs new trial. the result
of which Is above stated. The law points involved
in this case highly important, and the amount in
VOWED il not only that of the above policy but that Of
another Of equal amount issued by the Company
at the same time to- Isaah Townsend of Cornwall,
brother of the plaintiffs IN this case, and with them
int Of tie cotton mill Mt the time OF the ire
Tic due ,XcCutiun If the policy admitted by the
defendants trial also the destruction Of the insured
propety and it, value exceeding the amount named
in the policy.
The defense set up against the right of recovery
the pat of the plaintiff lst. misrepresentation
of fact. ,erial to the risk; 2d. violation of GER
tain engagements entered into BY the plaintiffs at the
time of obtaining their insurance; anu 3d. The intro
duction Of steam power to propel the machinery IN
ace of the water power used ut the time Of survey.
L. The month Of May 1851, the plaintiffs made appi
cation in the usual form for Insurance by the North
western Insurance Company ON their cotton mil, and
machinery fixed and movable thereln-setting forth,
in answ er TO the printed questions n the survey,
that the whole property in good condition. that
the mill was supplied with force pump and suitable
hose, dcs,gned expressly for the erfiaguishmeM of
fTes and at all times condition for that there
was tank or reservoir at the top of the stairway
outside of the building capable OF holding large
quantity of water, and that this tank was TILED by the
force pump by means OF twO-inch wrOught-TOn pipe
running up Just inside Of the doors leading into the
main building from the stairway tower, and had fau
L. BY each door, and hose hanging by that cOult at
any time be attached that in Of fire in any
part Of the building, water could readily be brought ~
b, upon it. The force pump stated 10 be capa.
bic Of throwing eighty gallons of water per minute 1t
was turtle stated that the cotton waste removed
daily and il also appeared from the survey that
ter power only was used In propellng the machinery
IL was further stated that the mill warmed by
steam from locomotive boiler in the wheehouse
outside Of the main building, and separated from it by
a solid bnck wall, and that this steam WAS also en-
pl0yed in making sizing for Use in the factory.
liz proof il appeared that to the first point Of de-
fese viz instrumentation and conceament OF facts
material to tie risks that far from the whole being
in good order, the boiler was old requiring constant
r.uslrs and very unsafe; also, the bulkhead above
the mill was old and eaky, and required to be entirely
taken own and its place supplied by new one
A. TO the second point of denfense, viz violation
of engagements on the par OF the plaintiffs; 1t APP
reared n at We plaintiffs tore down the old Dlkhead
and built new one, larger and of improved plan
aud maerals and while doing that directed the water
entirely from the mil, and on applying the steam
POWER ungesred the forcing pump from the water
wheel and entirely disabled the force that at the
time Of the fire there water at hand and no
means Of applying to extingush the fire, if there had
been. The testimony as to the removal OF the cotton
waste conflicting, and did not establish the fact
clearly az 10 its nonremOval.
10 Rid AZ Of uTOypf.
That the Plaintiffs had introduced new stesm-boler
and engine for the purpose OF propelng tue macnn-
cry; the steam from the boiler being also used to
warm the mill &C., that from the old one had been
Tie plaintiffs represented in the survey that the
building was erected in l54e; that the machinery had
run only three year aud that the works are In good
condition. II appeared however, that the bukhead
had stood twenty years, and that the boiler was an
old second ban locomotive boiler, and had been he-
quently repaired. ~
In reply to the frst and second points, the plaintiffs
claimed the night 10 make repairs when necessary,
even though they did for the time being, increase the
rsk On the third point they contended that the new
boiler Ea1 safer than the old and that there was,
therefore, Of risk, they had not exceeded
their rights under the policy.
ON tie part the Defense the attention Of the jury
was called that cause Of the policy which makes the
insured responsible for the accuracy Of bis own survey
and representations as to the condition OF his properly,
and ssO to the clause which requires that ID case INC
risk b. increased by any means within the confo Vi
the insured, then the policy snail be void ana OF no
effect. .r
No pretense of fraud the part OF the plaintiff was
alleged by the defendants, and II wa, admitted that
usfepresen stons or cObceaments on the part Of tho
injured must be material TO the sk in order 10 avoid
the policy. e,
HE Honor, Judge Brown, charged the jury as fol-
lows: . l.
This POLICY upon half Of cotton factory situated IN
TIE Town OF Cornwall, and the amount Of tho i'afanee
$500. ..,
Of efectiny said insurance there were CERTAIN
inquiries put BY the the plaintiffs 70 which hey
hsse questions and .LsSe were N ~rtns:
defendants did net 70 the srousd out SUI ted
questions Mr. To~sseDd for bis sns"es a. 70 Toe coz
aition Of the subject offered for Insurance
kese inquiries had reference 10 tue condition Of ,hs
rib the bad reference 10 future state
citon L. tie question, for instance how often 10
H. dirty rsuoyedr IL answered daily That
Drxpsorv rrpre.ehAtOn When mention 10 msde u prom
,n-y or .reuty representsfions implied that there
., stts hich The insured 20 DO while the policy
bodied the policy and
therefore amount 20 warrents Nov the differ
erecutory representation a-d warranty TO-
tis, embodied the policy add the other not they
embodied IN The policy they must be strictly eo@psd rita
they rot in the policy they only 70 Do
comp % with 10 matter q substance. -
Bot nsltd the Of tbs dstsnss that SONS thess
~ SAattns oAA8< ~