69 N.Y.S. 344 | N.Y. App. Div. | 1901
This is an action to set aside an award made by appraisers appointed pursuant to the arbitration -clause contained in a standard insurance policy and to recover on' the policy for a fire loss. The referee found that the plaintiff’s signature to the appraisal agreement was procured through fraud and that, consequently, said agreement and the award made thereunder were void and should be vacated and set. aside. . The policy provides that the loss or damage shall be ascertained or estimated according to the “ actual cash value ” of the property at the time of the fir'e,“ with proper deductions for depreciation however caused,” and shall in no event exceed what it would then cost the insured to repair or replace the same with material -of like kind and quality. It further provides that “ In the event of disagreement as to the amount-of loss the same shall, as above pro- ■ vided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so-chosen shall first select a competent and. disinterested umpire; the-appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto-shall pay the appraiser respectively selected by them, and shall bear-equally the expenses of the appraisal and umpire.”
The appraisal agreement was executed by plaintiff, this defendant- and three other insurance companies interested in the loss, viz.,, the British American Insurance Company, the Svea Assurance-Company and the Fire Association of Philadelphia. The appraisal was demanded by one Locke, who at that time was authorized to represent all of these companies excepting this defendant. Tlieevidence presented in behalf of plaintiff was sufficient te authorize-a finding that Locke represented to plaintiff that Vanderwerf, the.
In Bradshaw v. Agricultural Ins. Co. (137 N. Y. 137), where it was represented to the insured that an appraiser named by the company was “ entirely disinterested and indifferent,” when as a matter of fact, he had frequently represented the same and other companies, the court held that the clause in the policy calling for “ competent and disinterested ” appraisers means one who is not “ biased or prejudiced,” and that in view of the representations a question of fact was presented as to whether the appraiser, in view of his having so often acted for the defendant and other insurance
It was contended that plaintiff had no notice of the time and place of the meeting of the appraisers; but the evidence fails to ■•show whether he had notice or not, and the burden was doubtless upon him of showing want of notice if he were seeking to set aside the award upon that ground. (Butler v. Mayor, 1 Hill, 489.) But the sole ground upon which plaintiff seeks to avoid the award
We are, therefore, of opinion that the findings of the referee, that
The appellant in this case contends that the award made by the appraisers cannot be set aside as against it even though plaintiff was induced to sign the agreement through the frand of Locke, inasmuch as Locke did not represent it and was not authorized to act in its behalf. The evidence indicates but does not clearly show that the appraisal agreement was sent to this defendant’s agent by Locke for approval arid signature after plaintiff had signed and forwarded it to Locke. It does not appear that this appellant knew of - the representations made by Locke. It is urged on behalf of respondent that the insurance company, by subsequently signing the appraisal agreement, acknowledged or ratified Locke’s authority to represent it. If the appraisal agreement be a joint contract, then it is clear that plaintiff’s signature having been obtained by the fraud of one of the parties the agreement would be wholly void. I think the same result follows even if it be a several agreement. Both public policy and justice forbid that the insurance company should be permitted to enjoy the fruits of this appraisal agreement when the plaintiff’s consent thereto was obtained by fraud. Were it not for the fraud and deception practiced upon him,plaintiff would
It follows from these views that appellant is not entitled to the benefit of the appraisal agreement and that the judgment appealed from should be affirmed, with costs.
All concurred; Adams, P. J., and McLennan, J., concurred in. result only.
Judgment affirmed, with costs.