
    Stephen Le Roy et al. v. The Park Fire Insurance Company.
    A party cannot at the trial assume as uncontradicted, facts which are in question upon the evidence, and ask the court to rule upon the same, as a matter of law. In such case, the party should request the court to charge the law as he supposes it to be, if the jury shall find the facts to be as claimed by him.
    Assuming that a paper, called survey No. 280, had been delivered by the plaintiff, as a survey, on which he requested a policy of insurance to be issued, and was a warranty, and that the conditions of that paper had been violated, the defendants requested a charge, that the conditions of the survey and policy had been violated, and that the plaintiff could not recover; and where it also appeared that there was evidence that the paper in question was signed by the plaintiff, and received by the agent as a private memorandum merely, that it was never read by the plaintiff, and that it had been altered in its date; and where such survey was not presented until after the policy had been delivered without condition in reference to such survey, — held, that the defendant was not entitled to the ruling claimed, that the question should have been submitted to the jury, under proper instructions from the judge.
    Whether certain acts or omissions increased the risk, was a question for the jury..
    The plaintiffs were owners of a paper manufactory, situate in Dutchess county, which they desired to have insured in the defendants’ company. Jordan Phillips was the local agent of the defendants, and issued the policy on which this suit is brought. The policy bears date of October 2, 1860, and was to continue for the. period of one year. About six months thereafter, to wit, in May, 1861, an interview took place between the plaintiff Le Roy, and the agent, Phillips, in which Phillips requested a survey to be made of the property, and in which a survey described as Ro. 280 was made out, as testified to by Phillips, May 22, 1861. The date of this paper Phillips afterward altered to the-14th of October preceding. Le Roy testifies, that, at the interview in May, Phillips told him he wanted an appraisal of the mill for his own private use, which was made in writing; that he then wanted a survey made, which Le Roy afterward had made and sent to him. Le Boy denies that it is the paper claimed to be survey No. 280, but says that Phillips called that paper a private memorandum, and that he, Le Boy, never read it. This paper contained a statement in answer to a question if there was a forcing pump in the mill, in these words: “No. Fountain-head or flume above the top of the mill, where we attach a hose that will throw water over the whole building.” “Are there casks in each loft constantly supplied with water?” “No casks but have water in every room, led through by iron pipes and faucets.” Evidence was given of the withdrawal of water from the flume and pipes.
    At the close of the plaintiffs’ testimony, the defendants moved for a nonsuit, which was denied. At the close of the trial, the defendants made the requests to charge, which are set forth in the opinion of the court. The jury found for the plaintiffs. The General Term of the second district affirmed the judgment, and the defendants now appeal to this court.
    
      John Thompson, for the appellants.
    
      H. A. Nelson, for the respondents.
   Hunt, Ch. J.

Assuming the facts to be un contradicted that the survey was a valid and effective paper, and that the same was a warranty, the defendants asked the court to charge, that, as there was no water in the flumes or trunk at the time of the fire, and had not been for five months prior thereto, so that none could be thrown over the building or on the wheels, the conditions of the survey and policy in respect to that fact were violated by the plaintiffs, and they could not recover. If the defendants had requested the law to be thus charged, if the jury should be of opinion that the survey had been delivered by the plaintiffs as a valid instrument, and if they should find the facts respecting the absence of water to be as claimed by the defendants, a fair question would have beep presented. Two objections upon the facts, however, are found in the case, against the propriety of this request in its present form : First, the plaintiff Le Roy, as well as the witness Howard, testify, in substance, that the paper signed on the occasion testified to by the insurance agent, as signed by Le Roy, was expressly declared by the agent to be intended as his private memorandum merely; that it was never read by him, Le Roy, and that it had been altered in its date, and that it was not the paper offered in evidence. (See Rowley v. Empire Insurance Company, 36 N. Y. 550; Plumb v. Cat. Insurance Company, 18 id. 392.) The defendants were not justified, in the face of this evidence, in assuming that this was a valid survey binding on the plaintiffs, and in asking for a charge as to the law, excluding the right of the jury to decide upon the disputed fact. It is a serious question whether, under Rowley's case just cited, this survey in every respect was not «the act of the company rather than that of the plaintiff.

Another objection arises from the time when this occurrence took place. The insurance contract was fully completed in October, 1860, and the policy then delivered, to take effect from its date. The policy was sgnt to the plaintiffs, and there was no agreement on their part, that this delivery was to be conditional upon the procuring of a survey. The agent did not then make any such claim, nor did he on the trial. He simply says, that, when he sent the policy (without condition), he also sent a survey to be-filled out and returned. When the policy was sent without qualification or condition, the contract was complete and obligatory. The rights of the parties were fixed by the papers as they then stood. A sub-, sequent survey, condition or warranty, was entirely inoperative. For these reasons the defendants can take no benefit from the request under discussion.

The defendants made four other requests to charge, of, which numbers two, five and six are based upon the same idea. They assume the existence and validity of the survey, that there has been a violation of the facts represented to exist, without allowing the jury to pass upon either branch of the case, and ask a legal conclusion in favor of the defendants. For the reasons already given, this claim cannot be sustained.

The judge submitted to the jury the question of the materiality to the risk of the absence of water from the flumes and the pipes, which, in any aspect, except that of an absolute warranty, was the proper question to be submitted, and was the question raised by the answer. (Grant v. Howard Insurance Company, 5 Hill, 10; Townsend v. North-western Company, 18 N. Y. 168.)

The defendants requested the judge to charge, that leaving the mill open and unwatched, made the risk greater and avoided the policy, and that the leaving of paper cuttings in the mill, produced the same effect. These objections have no weight. Paper cuttings would naturally and properly be found in a paper-mill. Whether carelessly or negligently used, or how far carelessness was to be charged in leaving the mill unwatched, and what was to be its effect, were questions for the jury. The defendants, if they wished attention to these points, should have asked that the questions of fact be submitted to the jury, under proper instructions from the court. This they did not do.

Judgment should be affirmed.

Judgment affirmed.  