Fuchs v. Sun Insurance Office, Ltd. , 267 N.Y.S. 83 ( 1933 )

Lewis, John M., J.

The motion to- dismiss is granted on. the authority of Johnson v. Hartford Fire Insurance Co. (94 Misc. 163, 167).

The policy in this case provides' that' the insured shall give immediate notice in writing to the company of any loss or damage in- order- to protect the damaged property from any further damage, and shall “ forthwith-separate the-damaged and-undamaged. property,, put it in the best possible condition, and make a complete inventory. * * * The insured as often as may be reasonably required shall exhibit to any person designated by this company all that remains of any property- described in the policy.”

I find this- language on ah fours with that in the Johnson case. There is some question as to-the sufficiency of the: notice given-, to the company and the manner in which- it was originally forwarded through the witness Liebler, who returned the same. Without passing on that question, I find that the plaintiff’s, failure to put the damaged property in the best possible order and to keep it for exhibition to the adjuster or his representatives brings the case squarely within the rule laid down in the Johnson ease. In the authority cited therein (Flynn v. Hanover Fire Ins. Co., 67 Misc. 117) it was said in the dissenting opinion that where the plaintiff by his neglect loses the right to be reimbursed, “ then his position is unfortunate; but he himself agreed to the terms upon which the company was to reimburse him.” And it was held that the company could not be forced to reimburse him upon other terms.

It is because this case is so similar to the Johnson case and the question so well decided in that case by the Appellate Term that this motion to dismiss the case is granted.