Gorsch v. Northern Assurance Co. of London ( 1911 )

SBABURY, J.

We are satisfied that the evidence in this case justified the finding of the jury that the fact that the plaintiff had parted with the interest, title, and possession of the property insured before the policy in suit was delivered to him was known to the defendant at that time. This feature of the case distinguishes it from Gorsch v. Niagara Fire Insurance Company, 68 Misc. Rep. 344, 123 N. Y. Supp. 877. The jury having found upon sufficient evidence that the defendant had knowledge of this circumstance, it follows that in delivering the policy to the plaintiff the defendant waived the condition and estopped itself from setting up a defense based upon it. Forward v. Continental Insurance Company, 142 N. Y. 382, 37 N. E. 615, 25 L. R. A. 637.

Order affirmed, with costs. All concur.