New-York Fire Insurance v. Delavan , 8 Paige Ch. 419 ( 1840 )

The Chancellor.

I have not been able to find any precedent for a bill of this kind, and I am not aware of any principle upon which it can be sustained. It is in effect an application to restrain the defendant from removing or disposing of his stock in trade, or that part of it which has been saved from the fire, until the determination of a chancery suit, and after a decree shall have been obtained therein to compel him to furnish the insurers with an opportunity of examining the goods saved, to obtain testimomony to contradict the defendant’s statement, and proof of loss. This would indeed be carrying the jurisdiction of this court much further than it has ever yet been extended ; and in a case where it does not appear to be necessary for the attainment of justice. The defendant himself is by the terms of the policy bound to furnish a particular statement of his loss, not only for the purpose of enabling the insurers to test its correctness by the testimony of witnesses, and a resort to his books, but also to enable them to substitute other articles in the place of those which are damaged or lost, if they shall elect to do so. And in case the assured, without any reasonable excuse, refuses to permit a proper scrutiny as to the loss, by an examination of the goods remaining on hand, or otherwise, the insurers will have the full benefit of the presumption of fraud, and unfairness in his statement of the loss, before the jury which tries the cause. Here I think also that the answer furnishes a sufficient excuse for the refusal to postpone the defendant’s own inventory, and statement of the particulars of the loss; and no reason is stated in the bill why the complainants’ agent or witness could not have examined the goods at the store of the auctioneer, to which they were being removed at the time the defendant consented to have them examined there.

As the court was not authorized to give any relief to the complainants, upon the case as made by their bill, the injunction which was merely incidental to the relief prayed for ought never to have been granted. The decree of the vice chancellor was therefore right, and the same must he affirmed with costs.