AMPERSAND HOTEL CO.
HOME INS. CO. ET AL.
Appeal from Trial Term, Franklin County.
Action by the Ampersand Hotel Company against the Home Insurance Company and another. From a judgment for plaintiff, the named defendant appeals. Reversed, and new trial granted.
Hartwell Cabell, for appellant.
William B. Ellison, for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
This is an action on a policy of fire insurance issued by the appellant on a hotel of the plaintiff known as the Hotel Ampersand and on personal property contained in said hotel. The property was destroyed by fire September 23, 1907. The policy was [115 N.Y.S. 481] in the usual standard form, containing the customary provisions generally found therein. At the opening of the trial, on motion of plaintiff, the court dismissed one of the defenses in the answer on the ground that the facts therein stated were insufficient in law. The court treated such motion as in effect a demurrer to the defense. The question for us to determine is whether such defense as pleaded would be sufficient as against a demurrer.
The policy contained the following provision:
" This entire policy shall be void *** in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."
And also this further provision:
" This entire policy shall be void *** if the hazard be increased by any means within the control or knowledge of the insured."
The defense in question, after alleging the foregoing provisions of the policy, continues as follows:
" That at the time of said fire of September 23, 1907, and for a long time prior thereto, one Charles M. Eaton was the owner of, to wit, $110,900, par value, of the stock or plaintiff; that the total amount of plaintiff's capital stock issued and outstanding was $115,000, par value; that said Eaton has been continuously since the organization of plaintiff, and is now, the treasurer and a director of plaintiff, and in complete control and management of its business and affairs; that on or about the 10th day of September, 1907, plaintiff, through said Eaton, and for the purpose of collecting upon said policy of insurance, entered into a fraudulent conspiracy with one Herman Van de Wall, alias Frank, and others, wherein it was planned that said Van de Wall should procure some person or persons to cause the destruction of said property by fire, to enable the plaintiff to recover from the defendant the insurance mentioned in said policy described in the eighth paragraph of this answer; that while said plan and conspiracy was still in existence and in process of accomplishment, the said fire of September 23, 1907, occurred; that said plan and conspiracy was a fraud on this defendant; and that the hazard insured against under said contract of insurance was thereby greatly increased, whereby, and by reason of said fraud and increase of hazard, said policy became and was on the date of said fire null and void."
The appellant disclaims that the fire occurred as the result of the conspiracy alleged in this defense, and we do not indulge in such an inference; but it is a proper inference from the phraseology employed that plaintiff was actually procuring some person or persons to burn the property when the fire occurred. In Coatsworth v. Lehigh Valley Railway Company, 156 N.Y. 451, 457, 51 N.E. 301, 303, it was said:
" Under the more recent authorities, pleadings are not to be construed strictly against the pleader; but averments which sufficiently point out the nature of the pleader's claims are sufficient, if under them he would be entitled to ...