
    William C. Le Gendre, Appellant, v. Scottish Union and National Insurance Company, Respondent.
    
      Insurance policy — reformation of., by substituting the “nortJierly” for tJie“southerly ” side of a road—proper, where there was no mistaJee in the agreement, but an error in reducing it to wi'iting.
    
    In an action to reform a policy of fire insurance upon personal property, “ while-contained in the frame building, owned b.y the assured, and situate on the southerly side of the upper road leading from Mount Bascó to Bedford, * * *• Westchester county, N. Y.,” by substituting the word “ northerly ” for “ souths erly,” it appeared that the house in question was located on the northerly side, of the highway and that the insured had no other house and no other similar personal property in the county of Westchester; that the land was located in a rural community outside the protection of any regular fire department, and that, so far as the hazard was concerned, it made no difference on which side of the highway the house was located.
    At the time of the fire the premises were covered by three policies of fire insurance, the first two of which had been issued upon applications made by an insurance broker on behalf of the plaintiff. These applications described the building as being situated on the southerly side of the road. The broker had never seen the premises, but acted under written instructions from the insured. It did not appear whether the mistake was made by the plaintiff or by the insurance broker.
    These two policies remained in the possession of a firm of insurance agents. These agents discovered the mistake in the first policy and procured it to be corrected. The plaintiff was not aware of the discovery or correction of the mistake in the first policy nor did he discover the mistake in the second policy, which was the policy sought to be reformed. The third policy, which correctly described the location of the property, was taken out by a mortgagee and the plaintiff never saw it.
    
      Held, that the plaintiff was entitled to a reformation of the policy under the doctrine that, where there was no mistake in the agreement, but merely an error in reducing it to writing, the contract will be reformed.
    Appeal by the plaintiff, William 0. Le Gendre, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Robert L. Harrison, for the appellant.
    
      Edgar J. Nathan, for the respondent.
   Laughlin, J.:

This is an action to reform an insurance policy and to recover upon it, as reformed, a loss sustained by fire. The insurance was' Upon personal property owned by the plaintiff or any member of the household,” consisting principally of household furniture and effects “ while contained in the frame building, owned by the assured and situate on the southerly side of the upper road leading from Mount Kisco tó Bedford, * * * Westchester county, N. Y. This insurance also to cover the property insured while in transit from Pelham Bridge to residence of the assured at Bedford.” The residence of the plaintiff containing the property was in fact situated on the northerly side of the road specified in the policy. He alleges that the property intended by both parties to be insured was in his house on the northerly side of the road, and that the word southerly ” was inserted in the policy through inadvertence. It appears that at the time this policy was issued the plaintiff owned no other house and had no other similar personal property in the county of Westchester. The house is in the middle of an eighteen-acre tract of land in a rural community outside of the protection of any regular fire department. At the time of the fire the plaintiff had two other policies of insurance issued by the defendant on his dwelling and contents, one of which was issued before and the other after the policy in question. The first of these likewise erroneously described the dwelling as on the south side of the highway.' About six months after the issue of the second policy the mistake in the first was discovered by Messrs. Harrison & Byrd, insurance agents, who had the first and last policies in their possession, and they forwarded it to the home office, where the mistake was corrected by substitution of a new form containing a correct description. The plaintiff was not aware of the discovery or correction of that mistake, and he did not discover the mistake in the policy now sued upon. The third policy correctly described the location of the property. It was taken out by a mortgagee and the plaintiff never saw it. The company paid its liability under the first and third policies, but denied its liability under the second on account of the mistake in the location of the property. The applications for the first and second policies were made, in. behalf of the plaintiff, by an insurance broker upon blanks furnished by the company. It described the property as ^contained in the frame building owned by the plaintiff and situate on the southerly side of this road. The description of the location in the policies was taken from these applications respectively. The broker had never seen the premises, but testified that he applied for the insurance under written instructions from the plaintiff, and produced the plaintiff’s letter containing the order for the insurance, which was marked for identification but not introduced in evidence, and it does not appear whether .the mistake was made by the plaintiff or by his agent. ■

We regard this as a plain case for the reformation of the policy. It is manifest that the plaintiff intended to insure the property contained in his residence. He doubtless knew, although even that lias not been shown, that his house was on the north instead of the south side of the road; and it is evident that the erroneous description in the policy locating his house on the south side of the road was, at least so far as he is concerned, the result of some inad- '/ vertence or mistake. The defendant, however, contends that there was no mistake on its part. It offered no evidence and, consequently, there is nothing but the facts already stated from which inferences on that subject may be drawn. If the defendant knew the true location of the plaintiff’s house and with such knowledge issued its policy intending to describe the location erroneously, it was guilty of a fraud which would require the reformation of the contract; but the plaintiff does not charge fraud, and it is not ordinarily inferred where the evidence is susceptible of an interpretation consistent with innocence. ¡ Assuming, therefore, that the ■ defendant meant to act in good faith and that it had no. knowledge v. concerning the location of the property except that presented in the applicationfthen it also labored under a mistake in describing the location of the property. Upon this assumption the defendant intended to insure the plaintiff’s personal property contained in his residence. The policy correctly described the property and describes it as belonging to the plaintiff and being in his residence; but it erroneously states that the residence was on the southerly instead of on the northerly side of the highway. In supposing or believing that the plaintiff’s residence was on the: southerly side of the road the defendant was mistaken.

Plaintiff intended to procure insurance upon the household prop-.....' erty in his residence and that is the property the defendant intended to insure, but in reducing their agreement to writing the word “ southerly ” was erroneously inserted instead of the word “northerly” as indicating the location of the residence of the assured with reference to the highway. The casej therefore, falls within the r doctrine of the authorities that where there was no mistake in the ' agreement but merely a mistake in reducing it to writing the contract will be reformed. (Pitcher v. Hennessey, 48 N. Y. 415 ; Maher v. Hibernia Ins. Co., 67 id. 283; Hughes v. Mercantile Mutual Ins. Co., 55 id. 265 ; Bush v. Hicks, 60 id. 298; Arend v. Laing, 79 Hun, 203.)

There is no force in the suggestion that since the plaintiff’s agent represented to the defendant that the property was on the southerly side of the road it cannot he held liable for insurance on any property situated elsewhere. Located as this property was, it is evident that it made no difference, so far as the hazard is concerned, as to whether the property was on the north or the south side of the road. There is no estoppel. It does not appear that the defendant made any investigation or that it considered that there was any difference in the hazard depending upon which side of the road the property was, and if it did investigate it would have discovered the true location of the plaintiff’s residence. Had it done so: within a reasonable time and had there been any basis for claiming it had been misled to its prejudice, it might have rescinded the contract and returned the premiums; but having retained the premiums until after the fire it should’not he heard to say that no property was insured.

It is unnecessary to decide whether the plaintiff could have recovered without reformation and, therefore, we express no opinion on that question.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. '  