82 A.D. 234 | N.Y. App. Div. | 1903
Lead Opinion
This action was brought to set aside an award of $9,000, made pursuant to the provisions of an insurance policy which plaintiff had taken out from the defendant, on the ground of alleged misconduct and irregularity of the appraisers and umpire, and to recover the full amount of the policy of insurance. The plaintiff was the owner of a lot of colonial furniture, which it had purchased from the estate of a deceased collector for the sum of $13,000, and had stored in a warehouse. It procured it to be insured under several different policies of insurance, aggregating $20,000. The property was almost entirely destroyed by fire, and the assured and defendant not being able to agree upon the amount of the loss, each party chose an appraiser and these two appraisers chose an umpire. Pursuant to a clause in the insurance policy these three were to make an appraisal of the property destroyed. Prior to the fire the plaintiff had sold one-half of the property which it had purchased as aforesaid for $30,000, and the portion remaining unsold was deemed to be as valuable as that disposed of. The appraisers and umpire met at the warehouse where a portion of the "goods which had been saved from the fire, but which were rendered practically worthless, was piled in heaps. This meeting took place in the month of December, and it being very cold at that time, they were unable to make a practical examination and adjourned to meet again at the same place. At the adjourned meeting they did practically nothing but to casually discuss the value of a few of the articles in question and again agreed to adjourn until after the Christmas holidays. A few days before Christmas' the appraiser of the defendant sent for
The plaintiff and its appraiser testified that they had no notice or knowledge that the umpire and the appraiser for the - defendant intended to make an appraisal at the time when the appraisement and award were made. Indeed, there is no substantial dispute in the testim ony respecting such matter. After the plaintiff’s appraiser had met the appraiser for the defendant and the umpire, and had failed to agree upon the sum which should be awarded in measurement of the loss, the parties went to the Ashland House and there partook of some refreshments and further discussed the matter, without, however, reaching an agreement. The umpire, -Graham,, testified that they then left the- Ashland House and walked up Fourth avenue to" Twentyrseventh street. He was asked •: “ Q. Had you any con
It is thus apparent that the plaintiff received no notice whatever that the umpire and the appraiser for the defendant would upon that night consider the question and reach a final determination. On the contrary, the information which was given by the umpire to Mr. La Place was, that if he would go to the Victoria Hotel they would settle it. Neither the umpire nor the appraiser made any objection when La Place stated that he was going home, nor did they in anywise indicate to him that they proposed then to reach a conclusion and make an award. On the contrary, the statement of the umpire was that he was ready to do it if the appraisers would go to the Victoria Hotel with him, but there was nothing said or done tending to indicate to La Place that an award would be made in his absence. It is probably true that no formal notice to the insured was necessary to be given of the meetings or proceedings by the appraisers when they act in good faith and in the usual
In addition to this, it appears that the award was made by the ’ umpire in gross. It is not pretended that the articles were gone over in detail, or that there was any discussion of the value of the-goods burned out of sight or of those partially destroyed. While it is doubtless true that in making an appraiseinent it is not contemplated that evidence will be taken by the appraisers, yet it is. required that they consider the value of the goods destroyed in detail, and are authorized to hear statements and explanations-respecting the goods and their value. The fact that the umpire or the appraisers have more or less information respecting the value-of the goods, does not change the right of the insured to have the value of the property destroyed considered in detail, or deprive the insured of the right to be heard upon such subject, either by himself or through his appraiser. (Kaiser v. Hamburg-Bremen Fire Ins. Co., 59 App. Div. 525.) In the event of disagreement by the appraisers, the umpire is bound to consider their differences and the
It follows that the judgment should be modified by awarding to the plaintiff" interest upon the sum recovered from sixty days after proofs of loss were given, and as modified the judgment should be affirmed, with costs to the plaintiff.
Van Brunt, P. J., Patterson and Ingraham, JJ., concurred.
Dissenting Opinion
The claim in its nature was unliquidated and I think the Special Term was right in refusing to give to plaintiff interest. I think, therefore, the judgment in all respects should be affirmed.
Judgment modified as directed in opinion, and as modified affirmed, with costs to the plaintiffs.