Lockwood v. Automobile Insurance ( 1941 )

Defendant has appealed from an order of the Albany Special Term of the Supreme Court directing it to furnish plaintiffs with a bill of particulars. The action is upon a policy of fire insurance issued by defendant covering furniture and fixtures owned by plaintiff Helene Loclcwood and destroyed by fire while the policy was in effect. The answer admits the issuance of the policy and denies the other material allegations of the complaint. It asserts three separate defenses: (1) that at the time of the fire and prior thereto the hazard was increased by means within the knowledge and control of the insured; (2) that at the time of the proeurance of the insurance and in the proofs of loss and the examination under oath held pursuant to the provisions of the policy the insured concealed certain facts, misrepresented material facts and circumstances concerning the subject-matter of the insurance and perpetrated a fraud upon the defendant and was guilty of false swearing and grossly exaggerated the claim; (3) that the named insured was not the sole and unconditional owner of the property covered by the policy of insurance. The order of the Special Term is too comprehensive. Defendant is directed to serve upon plaintiffs’ attorney within ten days after the service of a copy of the order to be entered hereon with notice of entry a verified bill of particulars stating: (1) the acts of plaintiffs as a result of which defendant claims the hazard was increased; (2) a statement of the facts and circumstances concealed or misrepresented by the plaintiff Helene Lockwood concerning the subject-matter of insurance prior to and subsequently to the procurement of the policy of insurance; (3) the acts of fraud which defendant claims were perpetrated upon it by plaintiff Helene Lockwood in the procurement of the insurance and the proofs of loss; (4) in what particulars and regarding what items of property defendant claims plaintiff was guilty of false swearing in the proofs of loss or upon the examination conducted by defendant pursuant to the provisions of the policy; (5) a statement of the various items of property of which defendant claims Helene Lockwood was not the sole and unconditional owner. The order appealed from is modified in the respects indicated and as so modified is unanimously affirmed, without costs to either party. Present — Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ.