Opinion
April 12, 1943.
The action is to reform a policy of fire insurance issued by defendant, because of alleged mutual mistake or by reason of the mistake of plaintiff and the fraud of defendant. The pertinent terms of the rider attached to the policy being plain and unambiguous, proof of a custom or usage which contradicts or varies the terms is inadmissible ( Green v. Wachs, 254 N.Y. 437; Hopper v. Sage, 112 N.Y. 530; Hayward v. Wemple, 152 App. Div. 195) and, therefore, the allegations in relation thereto have no place in the amended complaint. ( Kavanaugh v. Commonwealth Trust Co., 181 N.Y. 121; Bulova v. Barnett, Inc., 193 App. Div. 161; Howard v. Breitung, 172 App. Div. 749. ) Order denying defendant's motion to strike out paragraphs "Ninth" and "Tenth" of the amended complaint as irrelevant and unnecessary reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to defendant to answer within ten days from the entry of the order hereon. Close, P.J., Hagarty, Johnston, Taylor and Lewis, JJ., concur.