7 Cow. 645 | N.Y. Sup. Ct. | 1827
The only question is, whether the notice of the 2d of March was a compliance with the 10th proposal in the policy. That proposal is brought over from the English policies, where it is held to be a condition precedent; and the clause connected with it, which relates to the certificate of third persons, has been the subject of several decisions confining the plaintiff with great strictness to the persons named. (2 Condy’s Marsh. 808, 813, and the cases there cited.) I am not aware of any case which goes into the form of the notice, and the affidavit of the party. Undoubtedly these must be furnished, according to the policy, a certain-number of days before
The non-suit must, therefore, be set aside, and a new trial granted.
Eule accordingly.
If the insurer puts his refusal to pay upon other grounds, his objection to the absence or imperfection of preliminary proofs will he considered waived. (McMasters v. The West Chester Mutual Ins. Co., 25 Wen. 379; Ætna Fire Ins. Co. v. Tyler, 16 Wen. 385.
Preliminary proofs were made forthwith after a fire, and delivered to the assurer at his request before copies were taken, and he subsequently, after repeated evasions, finally refused to furnish copies; held, that a new set of preliminary proofs furnished nearly four months after the fire, was, under the circumstances of the case, in season. Cornell v. Le Roy, 9 Wen. 163.
See also McLaughlin v. Washington Co. Mutual Ins. Company, 23 Wend. 525; Lawrence v. Ocean Ins. Co., 11 John. Rep. 260; 8 John. Rep. 311.