Mankin v. Southwestern Automobile Insurance

CONREY, P. J.

The subject of controversy in this action is stated by counsel for appellant as follows: “This is an

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action on an insurance policy executed by the defendant. The actual insurance agreement on the part of the defendant is in the form of a confiscation coverage, that is to say, another insurance company, to-wit: the Westchester Fire Insurance Company of New York, issued the main policy, to which was affixed the confiscation coverage rider executed by the defendant. The rider is set forth in full in the transcript on appeal, being exhibit ‘A’, and being on pages 10 et seq. of the transcript. Briefly, the agreement of insurance was to the effect that in the event the automobile insured should be seized by the federal, state, territory or county or municipal authorities by reason of the violation of the law relative to the transporting of intoxicating liquors, the company would indemnify the Mankin Motor Car Company in the extent of one thousand dollars ($1,000.00). This action has arisen by virtue of the fact that the insured automobile.was indeed seized by the federal authorities and confiscated and the interest of the plaintiff herein, as the vendor of that automobile, was cut off. The defendant refused to pay the indemnity mentioned in the insurance contract and this action was brought for the recovery thereof.”

Appellant contends “that the court erred in awarding judgment for the plaintiff, in that there was. not sufficient evidence to justify the verdict, in that the complaint declared specifically that all the provisions of the policy or bond were complied with; that said complaint alleged specific dates of performance of said conditions and set forth the policy or insurance contract

in ha-ec verba

as an exhibit so that there was no doubt as to the provisions alleged to have been performed; and as a matter of fact the evidence as set forth in the testimony of the plaintiff, . . . negatives the allegations and admits nonperformance thereof; that no amendment of the pleadings was offered, although invited by counsel for defendant; that the pleadings remain in the form originally presented; that the evidence does not substantiate the facts alleged, but on the contrary negatives the same. ’ ’