| N.Y. Sup. Ct. | Jul 2, 1861
Two questions only arise in this case, and are urged by the counsel for the defendant as a bar to the recovery—1st, as to the omission of the plaintiff to state truly his title and interest in the insured premises; and 2d, his failure to serve a sufficient notice of the proof of his loss, as required by the policy.
As to the first ground, it has already been decided by the general term in this district that knowledge in the agent by whom the insurance is agreed to be made, and who takes and fills out the applications, of the existence of incumbrances upon the title, or of prior insurances, is knowledge on the part of the company. The case of Ames v. N. Y. Union Insurance Co. (14 N. Y. Rep. 253) is in principle precisely like this, and the same doctrine is held in several other cases; the common ground upon which they proceed being that the company is chargeable with knowledge of all the facts stated by the applicant for insurance to the agent, and he having' truly stated to the agent the real condition of the property, cannot be held to have made any misstatement or practiced any concealment in reference to the company. Such was the case here, as the testimony discloses, and the first objection is thus disposed of.
All persons sustaining damage or loss by fire are forthwith to give notice to the company, and within forty days are to “deliver in a, particular account” of such, loss or damage. Losses are payable by the company within three months after the loss shall have been ascertained and proved and the statement made as above. Then follows this clause: “All communications and notices to the company must be post paid and directed to the secretary at Canajoharie, N. Y.”
The statement of the loss, in this case, was made out and sworn to and then deposited in the post office at Carthage, Jefferson county, inclosed in a sealed envelope, postage paid, and addressed to the secretary of the defendant at Canajoharie. ■ This statement was never received by the company. The counsel for the plaintiff insists that this was a compliance with the condition of the policy, being, in the words of the clause, a “ communication ” which the insured was authorized thus to transmit. He claims that the object of the statement being to communicate information which the company" called for, it comes within the precise definition of that word; and that if there is any ambiguity about it, the interpretation is to be most strongly against the party using it, and -most favorably for the party to whom the word is given to construe, in accordance with the approved maxim, “verba fortius accipiuntur contra proferentem.” There is force in this consideration, and I am not sure that if this clause in the policy stood alone, and nothing else had been said in connection with the statement which the insured was to furnish,’ we should not he bound to give it that construction. But the difficulty is that there is another condition specifically pointing to this very statement or account, and which requires the party to “ deliver it in” to the company within forty days after the loss has occurred.
This is a positive requisition in respect to the very thing which the party undertook to do by transmitting his papers by mail, and it seems to me it can only be met by an actual delivery to some officer of the company, at its place of business. A party may doubtless, if he chooses to run the risk, send his proofs by mail, and if they are received without objection, all will be well. Such was the case of Bumstead v. Dividend Mut. Ins. Co. (2 Kern. 81,) where proofs were thus transmitted and shown to have been received by the company. A positive requirement of the policy on the very subject in question, can hardly be deemed superseded or nullified by a general direction to forward communications and notices by mail, and which would very well apply to the first informal and preliminary notice of loss, and as a direction to agents in their multifarious communications to the company.
To uphold the construction of the plaintiff would render the first condition wholly nugatory, and no- rule of interpretation will authorize or require this. We must give effect to both clauses, if possible, so that both may stand, and we have seen that there is abundant room for both to operate and be effective. To allow a mere proof of service by mail would be exceedingly unsafe for insurance companies, and it will hardly be presumed, in the absence of an explicit authorization on their part, that they intended any such thing by a general direction which it seems to be clear had other objects in view, and can be satisfied without giving it so loose and wide a construction.
Upon the whole, although greatly disinclined to favor technical defenses on the part of insurance companies, to meritorious claims, I think the plaintiff failed to comply with the conditions of the policy which required him to furnish in season due proof of his loss, and consequently that there must be judgment in this case for the defendant. ■
Bacon, Allen, Mullin and Morgan, Justices.]