64 N.Y. 162 | NY | 1876
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Several questions of minor importance arise upon the record which we deem it unnecessary to consider for the reason that the point made by the defendant, of the failure of the plaintiff to furnish proof of loss within thirty days after the fire, entitled the defendant to a nonsuit upon the evidence as it stood at the close of the trial. That the condition was not complied with was conceded; that a substantial compliance with that condition, unless waived by the insurers, was necessary to enable the plaintiff to recover, is well established. (Savage v. TheHoward Ins. Co.,
The taking of another and distinct objection was not a waiver of the first. The entire letter was a distinct intimation that the company would rely upon both the objections stated. Had the defendant omitted to notice the omission to furnish proof of loss within the time prescribed, that time having long elapsed, it is questionable whether it would have been deemed a waiver, for the reason that it was then too late to supply the omission; and the plaintiff would have lost nothing by the omission of the company to call his attention to it. The defendant was at liberty, in response to the claim then made for the first time, by the plaintiff, to take every objection which was open to it. The objections did not annul or destroy or operate as a waiver of each other.
It is difficult to see how a party waives or is estopped from taking an objection which he distinctly asserts and makes at the very first opportunity. There was no evidence of waiver; and it was error for the learned judge to submit the question to the jury. The result was, as may be expected in every like case, the jury sympathizing with the insured, and thinking lightly of conditions which are really of the essence of the contract, and regarding them rather as technicalities than *167 matters of substance, have given their verdict against the insurers.
The judgment must be reversed and a new trial granted.
All concur; MILLER, J., not sitting.
Judgment reversed.