Burrill v. Chenango Mutual Insurance , 1 Edm. Sel. Cas. 233 ( 1846 )

The Circuit Judge:

The learned judge who tried this cause, overlooked the fact that there was an insurance on goods as well as on the buildings.

It is unnecessary to inquire whether the applications and the conditions were a part of the policy or not, because even if they were, they would not, according to the case of French v. Chenango Mutual Ins. Co. (7 Hill, 122), prevent the recovery for the loss of the goods. In that case, on a similar policy, the court held that if the policy was void as to the buildings, it might still be valid as to the personal property.

The condition refers exclusively to applications for insurance on buildings.

In this case the attention of the judge does not appear to have been called to the fact that this policy was upon personal property as well as upon a building. Hád it been, I apprehend that he would not have nonsuited the plaintiff for the breach of a condition which can have no possible reference to any thing but an insurance on the building. As to that, if the objection was fatal, the plaintiff was, notwithstanding, entitled to recover the value of the personal property insured. The nonsuit must be set aside and a new trial ordered.