98 N.Y.S. 979 | N.Y. App. Div. | 1906
The- action was brought upon a policy of fire insurance. ‘ The policy was,a New York standard policy and contained the following clause: “ If fire occur the insured shall give immediate notice of ' t - • any -loss thereof in writing to this Company, protect - the property from further damage, forthwith separate the damaged and undamaged personal property, put it "in 'the best possible order, make a-complete inventory of the same, stating the quantity and cost of each article and the amount ■ claimed thereon, and within sixty days . after the fire, unless such time is extended in writing by this Company, shall render a statement to this Company, signed .and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of . all others in the property; the cash value of each item thereof ■ and the amount of loss thereon; all incumbrances thereon ; all other , insurance, whether valid or not, covering any of said property,,and a copy -of all the descriptiotis and. schedules in all policies; any changes in the title, use, occupation,, location, possession or exposures of said property since the issuing of this policy'; by whom and for what purpose any-building herein described and the several parts thereof were'occupied at the time of'the fire.” . .'
“Dear Sirs.— Please call to investigate the fire at 137 Essex St. of Joseph Glazer, am’s of policy $500. Policy Ho. 98243. Damage as follows : ” Then follows a list of articles of personal property, with a number of dollars opposite each item aggregating $242, and then followed the following: “ Many things were thrown ou! in the street. Sideboard and looking-glass damaged.”
It is evident that this paper was not the proof of loss required by the policy. It was not signed or sworn to by the insured did not state the time and origin of the fire, the interest of the insured in the property, by whom or for -what purpose the building in which the fire occurred was occupied. This-clause of the standard policy provides for two acts of the insured. 'One is that the insured shall give immediate notice of any loss thereof in writing to the company, and this paper is sufficient to comply with this provision; but in addition to this immediate notice, the policy required_ that the insured should within sixty days “ render ” a sworn statement of the loss. In addition, therefore, to notice of any loss to the property required to be immediately given to the .company, the insured was bound to furnish the proof of loss within sixty days after the fire. (O' Reilly v. Guardian Mutual Life Ins. Co., 60 N. Y. 169.) The plaintiff, however, claims that this requirement of the policy was waived by the defendant, and this , is the question presented upon this appeal.
The defendant claims that there is no allegation in the complaint that this clause was waived, and, therefore, the plaintiff could not sustain the cause of action based upon a waiver. The complaint alleges “ that the plaintiff duly fulfilled all the conditions of said agreement on his part, and more than 60 days before the commencement of this actiop, to wit, on or about the 2d day of October, 1903, served on the defendant, as the proof of loss, a complete inventory of the property destroyed and injured, with the quantity and costs of each article and the amount claimed thereon, and the same has been retained by the defendant without objection, and that the defendant has required no further or other proofs of loss to
■ Assuming, however, that the allegation of the complaint was_ sufficient, I do not' think the evidence' sustained a finding that the • defendant had waived this provision of the policy. This waiver is based upon the fact testified to by the plaintiff that on Friday morning, two days after the fire, an adjuster for the defendant was. on the premises. On Saturday, October third; the plaintiff'was at the company’s office accompanied by an insurance agent by the name of Richmond and saw the' adjuster, who said to Richmond that he would, give to the plaintiff. $38 ; this offer the' plaintiff at once refused. " Richmond, the agent, testified that "on the day of the fire he went to the plaintiff’s house and subsequently made out the notice that was mailed to the insurance company-at its office on Broadway;, that afterwards he went to the office of the company' and asked a Mr. Thomas to settle the loss with the plaintiff; that Thomas-offered $38, but-that the plaintiff did not accept it ; That this was a couple of days after the fire; that Thomas had the notice
Upon this evidence the plaintiff rested and the. defendant moved to dismiss the complaint, one of the grounds being that there was no evidence in the case that the proof of loss was filed in accordance with thq conditions of the policy; that there was no waiver shown by the defendant of the terms required as to the filing of the proof of loss. That motion was denied and the defendant excepted.
Thomas was called by defendant. He testified that he went to the building immediately after the fire, examined the articles that he saw there which were claimed to have been, injured; that he made an offer to the insured at thirty-eight dollars; that at the time he made the examination of the premises he did not have.the notice dated October first with him- and did not know of its existence; that he had been connected with the defendant' for sixteen years as an adjuster, being sent out by the defendant to investigate the .cause of fires, and his duty also included the settlement of claims.
In> an interesting opinion, delivered in. the third department, in the case of Nugent v. Rensselaer County Mut. F. Ins. Co. (106 App. Div. 308), the cases in relation ".to a waiver by'an insurance . company of a condition "in the policy are collated, but in; none pf the cases cited and in none of which I have any knowledge is the fact that a company makes an offer to settle á claim" immediately after a fire and before proofs "of loss are required • by 'the policy, which offer is at once refused and the negotiation ended before the-time in which service of'the proof of loss is • required," has been held to be a Waiver 'of the requirement that such proof must be furnished. In Gibson Electric Co. v. Liverpool & London & Globe Ins. Co. (159 N. Y. 418), where the defense was that the
In this case the defendant did not dispute the validity of the policy, but disputed the amount of the loss that appeared in the notice of the loss served by plaintiff, and immediately after the fire made an offer which, if accepted, would have avoided the necessity of a compliance with the provisions of the policy. This offer was at once refused and the parties were then left in exactly the same position that they were in before the offer was made. The breach by the plaintiff was in not rendering proof of loss to the company within sixty days after the fire. The defendant did nothing after that breach had occurred and it did nothing to waive the breach. The plain tiff-was not misled by any act of the defendant and did'not refrain from serving proof of loss in consequence of any act of the defendant. The.offer was made and rejected long before the proof was due. .
My conclusion, therefore, is, that as the plaintiff failed either to allege or prove that the defendant waived this condition of the policy, and as it is conceded that the plaintiff .'cannot recover unless he has complied with the conditions of the policy or the defendant waived the condition, the plaintiff was not- entitled to recover.
It follows that the determination appealed from should be affirmed and judgment absolute awarded to the defendant under the stipulation, with costs.
McLaughlin and Clarke, JJ., concurred; O’Brien, P. J., and Houghton, J., dissented.
Determination affirmed and judgment absolute directed for defendant, with costs. Order filed.