Feinstein v. Massachusetts Bonding & Insurance 230 N.Y. 621

Louis Feinstein et al., Copartners under the Firm Name of Pan-American Waist and Dress Company, Appellants, v. Massachusetts Bonding and Insurance Company, Respondent.

Insurance — action torecover on policy of burglary insurance—defense of breach of warranty.

Feinstein v. Massachusetts Bonding & Insurance Co., 184 App. Div. 233, affirmed.

(Argued January 26, 1921;

decided March 1, 1921.)

Appeal from a judgment entered July 16, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiffs entered upon a verdict and directing a dismissal of the complaint. The action was to recover *622on a policy of burglary insurance. The answer set up as separate defenses: 1. That there was a breach of warranty on the part of the plaintiffs in that the premises were not solely occupied by plaintiffs at the time of the alleged loss, and that there was a violation of the terms and conditions of the policy by reason of an increase in the hazard regarding the occupancy of the premises in that the same were occupied in part by another tenant. 2. That there was a breach of warranty on the part of the plaintiffs in that prior to the issuance of said policy the assured named in said policy ha*d suffered previous loss or losses by burglary or theft. 3. That there was a breach of warranty on the part of the plaintiffs in that the name of the assured was not Pan-American Dress and Waist Company; also that the said policy was void by reason of the plaintiffs’ failure to disclose their names in applying for said insurance. 4. That there was a breach of warranty on the part of the plaintiffs by reason of the fact that they had been declined insurance by another insurance company or companies previous to the issuance of the policy in suit.

Sidney J. Loeb and Henry S. Mansfield for appellants.

Joseph L. Prager and Edward C. 0. Thomas for respondent.