
    McMaster vs. The President and Directors of the Insurance Company of North America.
    A statement, jm a notice and proof of loss, made hy a party insured, that there was “ other insurance” upon the same property, is not a statement that the assured had other insurance. To show a breach of a proviso or condition, in a policy, that if the assured shall have made any other insurances, the policy shall be void, it should be stated that he, the assured, had other insurance.
    The assured is not concluded by a statement, in Ms notice and proof' of loss, that a policy therein mentioned covers the same property as that embraced in the policy sued on, where, upon the trial, he asserts the contrary, and testifies that the former statement was made under a mistake.
    There is no error in admitting evidence of a mistake in a statement in proofs of loss, that the property in question was covered by other insurance.
    And there is no reason for holding such statement an estoppel; where it does not appear that the insurers were misled by it, to their injury, but the contrary appears.
    APPEAL from a judgment entered upon a trial before Justice Bocees, without a jury.
    The action was brought on two policies of insurance, issued by the defendant to S. B. Lake, to recover a loss by fire. ■ The complaint contains two counts. The first count is on a policy dated 8th October, 1866, and both the complaint and the policy describe the property insured, as follows: “On his barouche in shop north side of Rock street,” &c. * * “ This barouche is painted
    black, with red stripe—on storage. In case of loss by fire this policy is payable to David McMaster.” The second count is on a policy dated December. 1, 1866, and in both it and the policy, the property insured, after enumeration, is described as being “all on storage in the lower story of the paint shop on the north side of Rock street,” &c. “In case of loss by fire this policy is payable to Maria B. Clark.” The answer of the defendant admits, 1st. The incorporation of the plaintiff, “as stated in said complaint.” 3d. The issuing of both the policies described in the complaint. 3d. The service of proofs of loss; and as to each and every other allegation in the complaint, denies the same. The plaintiff proved his case, and the only questions involved on this appeal, arose on the last defence set up in the answer, which sets up the conditions in the policies against other insurance by the insured, on the property, without consent thereto of the company in writing; and avers that Lake, the insured, had other insurance on said property, at the time the policies in question were issued, without notice in writing, and without any consent thereto in writing by the company. The answer also alleges that both of'the policies, which, it states, constituted double insurance by Lake on the property insured, were effected prior to the policies in suit; that is, that one was dated on the 11th of July, 1866, and the other the 4th of October, 1866. .
    The judge who tried the cause, decided that the defendant had failed to sustain the defence, and directed judgment for the plaintiff.
    The following opinion was given by the judge who tried the cause:
    
      Bockes, J. The plaintiff seeks to recover upon two policies of insurance, issued by this company, each covering a period of six months, one dated October 8, 1866, the other December 1st, of the same year.
    The fire, causing the loss and damage, occurred December 13, 1866, and the plaintiff shows himself entitled to prosecute the claim.
    It is not disputed that the policies were issued as stated in the complaint; nor is it controverted under the evidence, that ■ the fire occurred as is alleged; nor, indeed, is the right of the plaintiff to recover the amount claimed disputed, unless the defendants have established the defence of a breach of one of the conditions in the policies, whereby they became and were void.
    Bach policy contained a condition or proviso to the effect, that if the assured should have or make any other insurance on the property covered thereby, or on any part thereof, without notice to and consent of the company in writing, the policy should be null and void. And it is averred in the answer that the assured, at the time such policies were issued to him, had two other insurances upon the same property; one by a policy issued by the ¡New-England Fire Insurance Company, dated on or about the 11th day of July, 1866 ; the other by a policy issued by the ¡North American Fire Insurance Company of Hartford, Connecticut, and dated on or about the 4th of October, of the same year.
    It is claimed and insisted, on the part of the defendants, that this matter of defence is fully and conclusively established by the statements of the assured contained in his notice of loss, required to be given according to the terms of the policies, and which was furnished to the defendants soon after the fire occurred.
    This is the principal point of defence urged in the casé, and rests on the authority of the decisiou in Irving v. The Excelsior Eire Insurance Co., (1 Bos. 
      507.) It is there held that the assured is bound by the statements contained in his notice of loss, and cannot, upon the trial, contradict them. Judge Woodruff says, the defendants rested upon the claim that if the facts stated and sworn to are true, they are not liable; and he adds, “the plaintiff could not, therefore, on the trial, change his ground by impeaching the truth of his own statement. The defendants had a right to take the facts as he stated them.”
    Concede this to be the settled rule of law, and it remains to be seen whether the assured, in his notice and proof of loss in this case, has madé a statement which, if true, sustains the alleged defence, and bars the right of recovery in this action.
    The language of the clause in the notice of loss, relied on by the defendants, is as follows : “There was other insurance on the same property, as follows, viz., in the Horth American Fire Insurance Company, Hartford, Connecticut, Ho. 2970, $700;” also, “in the Hew-England Fire Insurance Company, Ho. 51, $750.” Accept this statement as true, and does it support the alleged defence? Does it show a breach of the proviso or condition in the policies, which is, that if the assured should have or make any other insurances the policies should be void ? The statement is not that Lake, the assured, had other insurance on the property. Yet, to show a breach of the condition, it should be stated that he, the assured, had such insurance. (Tyler v. The Mini,a, Fire Insurance Oo., 12 Wend. 507 ; affirmed in Court of Errors, 16 id. 385.) In referring to this case Judge Davis says: “The proviso in the policy requiring notice to be given to the company of other insurances, relates only to other insurances by the plaintiff, and such are the express terms of the policy. Other insurances on the same property by another person is no defence, and is not a violation of this clause of the policy.” (Rowley v. The Empire Insurance Company, 
      3 Keyes, 557.) The proviso-in the policy alluded to by Judge Davis is the same, -in substance, as here, that if the assured should make other insurance. (See page 557.) Thus it seems that the statement contained in the notice of loss fails to support the alleged defence. It is insisted on,- by way of estoppel. It cannot, therefore, be enlarged by mere inference or argument. The fact asserted, to constitute an estoppel, must be clearly and distinctly stated, and must be complete in itself. A party should be estopped only to the extent of his assertion.
    It is clear, I think, that the alleged defence is not made out by the statement of the assured in his notice and proof of loss ; and the question now is, whether the defence set up in the answer is established by the evidence given on the trial, considered independent of the question of estoppel.
    
      First. As to the alleged insurance by the Hew-England company, the case rests on the statement contained in the notice of loss. It has been shown above that such statement was insufficient and ineffectual as a defence. Ho other proof was offered of any insurance by the Hew-England company ; hence the defence fails as to the alleged insurance on the property by the assured in that company.
    
      Second. Does it stand proved that Lake, the assured, had an insurance on the same property in the Hartford company? .
    According to the stipulation put in evidence, he had an insurance in that company, being policy Ho. 3970, alluded to in the proof of loss, which covered property as therein described. The question, then, is, did it cover the same or any of the property embraced in the policies on which this action is based ?
    In the notice and proof of loss, Lake stated, on oath, that it did. But on the trial he asserts the contrary, and that the former statement was made under a mistake. He now swears, in express terms, that he had not, in fact, any other insurance on the property.
    On looking into the description of property covered by the Hartford policy, Ho. 3970, stipulated to be substantially as given in the notice and proof of loss, we find it to insure “his buggies, charlotees, lumber wagons, or "other vehicles, finished or unfinished, and stock and materials for making and finishing, contained in the frame building occupied by him as a wagon-maker’ s shop, situated on the north side of Bock street, between Front street and railroad track, in the village of Saratoga Springs, Saratoga county, H. Y.” This policy was issued on the 4th of October. The property covered by the policies in suit, afterwards issued, might, in part, be embraced under the term “vehicles,” and, perhaps, would be so embraced in the absence of all proof to the contrary. But it is further described in the policies as “on storage;” loss, in one case, to be paid to Mr. McMaster ; in the other, to Mrs. Clark; and Lake testifies that the property was not the same as that covered by the Hartford policy. There was evidence by Lake, also, that the property, or much of it, was mortgaged, part to McMaster, and part to Mrs. Clark. When did Lake become the owner, and when was it mortgaged ? Had the mortgagees the possession, and was it put “on storage” by them? Lake was the only witness sworn, and he was not cross-examined. Ho explanation was asked of him, and I am left to determine the case on this state and condition of the evidence. The defendants must establish their defence. The burden of proof was on them; and it was incumbent on them also to make out, clearly, that there was here a double insurance, which rendered the policies in suit null and void. I am not satisfied that the defence is established.
    I have above considered the only questions raised or urged before me, and am of the opinion that the plaintiff is entitled to judgment for the amount specified in my findings, with costs.
    [Third Department, General Term, at Albany,
    January 23, 1873.
    
      Miller, P. Potter and Parker, Justices.]
    „ Judgment being entered accordingly, the defendants appealed.
    
      E. Cowen, for the appellants.
    
      A. Pond, for the respondent.
   By the Court.

We think the court at Special Term committed no error in admitting evidence of mistake in the statement (in the proofs of loss) that the property in question was covered by other insurance. The plaintiff is not concluded by that statement. There is no reason for holding it an estoppel, as it does not appear that the defendants were misled by it to their injury, but the contrary appears.

If the evidence of mistake in the statement was correctly admitted, the point of affirmative defence, to wit, the existence of other insurance on behalf of Lake upon the same property, was met by it, and the finding of the court against such alleged additional insurance is upheld by it.

There is, therefore, no ground for reversing the judgment, and it must be affirmed, with costs.  