
    Levy vs. Brooklyn Fire Insurance Company.
    A reference will not be ordered in an action on a policy of insurance, where the defence charges a fraud on the part of the insured; a party in such case is entitled to a trial by a court and jury. !
    This is an action on a policy of insurance against fire, tried at the New-York circuit in March, 1841, before the lion. Philo Gridley, one of the circuit judges. It appeared from the inventory of the plaintiff that the loss sustained by him was in furniture and glass-ware—some of the property being totally destroyed, and another portion of it being partially damaged. The judge suggested that the cause had better be referred. On which, an officer of the insurance company made an affidavit that the trial of the cause would require an examination of the plaintiff’s inventory, as well in respect to the goods, the amount thereof, the value of the portions totally destroyed and of the portions partially destroyed, as in respect to the correctness of the account of the loss exhibited by the plaintiff—and thus that the trial would require the examination of a long account. In answer to which, thq plaintiff made an affidavit that he was informed by the officers of the insurance company that their defence was two-fold: 1. That he had fraudulently caused the conflagration by which the property insured was injured; and 2. That in making up his statement of loss he had fraudulently over-estimated the amount of his loss, and thus had forfeited all claims upon the defendant., He further stated, that although the property destroyed or injured consisted of a variety of articles, differing in quality and value, yet his [ *688 ] *whole claim was founded upon one single occurrence, to wit, the injury done by fire; that bis counsel had offered, and he still was willing, to refer the cause to ascertain the true amount of his loss, provided the defendants would waive the defences of fraud in firing the premises and over-estimating the loss, both of which charges he pronounced utterly false,¡ and therefore claimed a trial by jury. The circuit judge referred the cause, notwithstanding the opposition of the plaintiff, who now moved to vacate thé order of reference.
    
    
      J. L. Wendell, for the motion.
    
      
      R. W. Peckham, contra.
   The Chief Justice

said, that without attempting to lay down any general rule as to the reference of actions on policies of insurance, he was of opinion that in a case involving such serious charges as were here brought against the plaintiff, a party was entitled to the benefit of a trial before a court and jury, and that therefore he would direct the order for reference to be vacated.

Ordered accordingly. 
      
       See 6 Wendell, 503: 19 Id. 22 and 110; and 1 Hall’s R. 560.
     