Buchholz v. United States Fire Insurance , 39 N.Y.S.2d 663 ( 1943 )

Per Curiam.

We do not need to consider whether, in the absence of a special contract, the plaintiff would be entitled to recover the value of the garlic destroyed by fire, in accordance with the terms of the original policy or the price at which a portion of the garlic was contracted to be sold in accordance with the terms of the rider. The parties themselves, acting under the policy, executed a written contract submitting* to appraisers the amount of the loss on terms which presumably were satisfactory to them. It is not suggested that the agreement was procured by fraud or mistake or even under a misconception by the plaintiff of his rights. After execution of the agreement of submission and the selection of appraisers the plaintiff peremptorily refused to proceed with the appraisal unless the defendant would consent to a modification of the agreement. The defendant was under no obligation to comply and accordingly declined that demand. The plaintiff then commenced this action on the policy. Upon the conceded facts the court was justified in dismissing the complaint. The plaintiff might not repudiate his contract merely because he had concluded that appraisal on a different theory would be more advantageous to him.

The dismissal of the complaint on the merits was proper for the reason that on the existing state of facts the plaintiff is not entitled to recover. This does not mean that the plaintiff may not maintain another action if he shall have complied with the conditions of the policy. (Wachtel v. Equitable Life Assurance Society, 267 N. Y. 289.)

The judgment should be affirmed, with costs.