
    FORSTER v. INSURANCE CO. OF NORTH AMERICA.
    No. 3090.
    District Court, E. D. New York.
    March 1, 1943.
    Max Ornstein, of New York City, for plaintiff.
    Bigham, Englar, Jones & Houston, of New York City (George S. Brengle and Henry J. Bogatko, both of New York City, of counsel), for defendant.
   BYERS, District. Judge.

The plaintiff moves for judgment on the pleadings in an action in which he seeks to recover a substantial sum of money for premiums paid by him under open policies of Marine and War Risk Insurance, on the theory that they were paid under a mistake of fact as to the coverage of the policies with reference to the various shipments declared thereunder.

Assuming for present purposes that the proper construction of the contract is a mixed question of fact and law, a reading of the depositions upon which plaintiff relies discloses that at least one risk, such as those which form the basis of the plaintiff’s claim, was proved as a loss and paid as such. The testimony of the plaintiff’s broker, Rubenstein, is consistent with an understanding on the part of the plaintiff of the precise nature of the coverage and his payment of premiums under the respective declarations.

In other words, the issues of fact are not so plainly in the plaintiff’s favor 6that the granting of this motion could be justified by any process of reasoning known to me.

Motion denied. Settle order.  