52 N.Y. Sup. Ct. 144 | N.Y. Sup. Ct. | 1887
Tbe only question which need be considered upon this appeal as as to the sufficiency of the proofs of loss .attempted to be furnished to the defendant upon the part of the plaintiffs. The objection that there were not sufficient parties plaintiff was not available to the defendant, as no such defense was set up in the answer. It is true that the alleged co-partnership was denied, but such a denial is not sufficient to sustain a claim upon the part .of .the defendant that there were other partners in the firm beside those alleged in the complaint. If the defendant desired to avail themselves of this defense, they should have alleged who they were, and that they were still living so that the plaintiffs could have been informed as to the precise claim made by the defendant in this respect, and have amended their proceedings accordingly, if they were so advised. Under a simple denial of an allegation of partnership a defendant cannot claim that there are other persons interested in the firm who should have been made parties plaintiff.
The proofs of loss do not accord with -the terms of the defendant’s policy as set forth in the complaint, among other- things, 'in that they were not signed by the plaintiffs or either of them, •nor -were they verified by their oath or affirmation, and unless there has been some waiver, either express or implied, of this icondition, the objection now taken must be fatal to the plaintiffs’ .claim. The alleged proofs of loss were served on the defendant on the 15th of September, 1885, and on the twenty-second of 'September, the manager of the defendant sent the very remarkable letter of that date, in which it is evident that he desired to keep .alive all objections to the proof and the claim,, and to keep the plaintiffs in entire ignorance as to what objection he had to the •proofs as'served. In this, however, we think he has failed.
The whole of the first part of the letter is qualified by the last paragraph. The manager says to the plaintiffs, without admitting .anything, you are hereby notified that his company has not admitted .any liability and does .not admit any liability whatever for and on ¡account of said alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers (referring to proofs or loss) contained; that his company has not waived ,and does not and will not waive anything and expressly reserves
In bis notice tbe manager gives no notice of tbe insufficiency of tbe papers; bis notice is that be does not admit any liability or tbe correctness of any statement in tbe papers contained. The papers called proofs of loss were retained by the defendant; it pointed out no defects in them. Tbe sole, tenor of its notice was tbat they would not admit tbe claim, and tbat it must not be considered as admitting tbe correctness of any statement in tbe papers by their retention. If tbe defendant desired to object to tbe form of tbe proofs of loss they were bound to give notice of tbat fact, so tbat they might be corrected. ‘This course, which ordinary fairness would seem to have dictated, tbe defendant carefully avoided doing, and by its letter of September twenty-second it seems to have desired to mislead tbe plaintiffs as to the grounds of its refusal to pay, while endeavoring to retain any other objection which tbe ingenuity of its manager might subsequently discover.
Tbe loss was disputed upon tbe ground tbat no contract of insurance existed, and to tbat point was tbe attention of tbe plaintiffs directed; and as tbe proofs of loss were retained, and no complaint made as to any particular omissions or defects in the proofs of loss, tbe plaintiffs bad tbe right to assume tbat the contention was to tbe fact of tbe existence of the contract of insurance. (Brink v. Hanover Ins. Co., 80 N. Y., 112; Hermann v. Niagara Ins. Co., 100 id., 411.) Under this condition of the evidence it seems to have been error to have dismissed tbe plaintiffs’ complaint upon tbe ground that tbe -proofs of loss were insufficient.
Judgment must be rendered and a new trial ordered, .with costs to appellants to abide event.
Judgment reversed,-new trial ordered, costs to appellants to abide event.
