9 Barb. 191 | N.Y. Sup. Ct. | 1848
I am inclined to the opinion that the objection in relation to the preliminary proofs, is not tenable. An attempt was- made to comply with the contract of insurance in this respect, and afterwards, the defendants, without notifying the plaintiffs that Sexton’s affidavit was insufficient, made an examination and pursued the inquiry to satisfy themselves. The jury might have found this to be a substantial compliance with the terms of the contract, and it would now be unjust to disregard all this, particularly after the jury have said
The “ conditions” attached to the policy contain this clause: “ Payment of losses will be made within three months after the loss shall have been ascertained and proved and the statements made as above.” The circuit judge decided that the preliminary proofs were evidence to the jury on the question of the amount of damages. They were no doubt admissible evidence in the cause, but not on this point, unless made so by the contract. The contract, I think, has not made them so. The defendants had a right to require them to aid in a mutual adjustment of the matter, but it is not stipulated that in case of litigation, they shall be evidence generally on the trial. On this point I think the judge erred.
Another objection is made, that no notice was given of a prior and existing insurance on the same property. The application must be in writing, and the surveyor is declared for this purpose to be the agent of the insured; but it is not declared that he can not be the agent of the company for other purposes. Here notice of a prior insurance was given to Wilcox. Wilcox’s appointment declared him authorized to make surveys and receive applications to the defendants to insure, and receive the money paid on effecting an insurance; and it further states that he has the confidence of the directors. If the jury found him agent for this purpose, which I think they were authorized to do, the notice was sufficient. (Cowen & Hill’s Notes, 1198. 15 Wend. 425. 3 Denio, 244. 7 Hill, 91.)
On the points of warranty and concealment there is more difficulty. In Trench v. The Chenango Co. Mu. Ins. Co. (7 Hill, 122,) the “ conditions” required the application to state the distance of the buildings insured from building within ten rods of it. That clause is not in the condition annexed to this policy. But the application is made part of the policy. The language is, “ reference being had to the application of said” plaintiffs “ for a more particular description and as forming a part of this policy.” (And see Burritt v. Sar. Co. Mu. Ins. Co. 5 Hill, 190 ; Jennings v. Chenango Co. Mu. Ins. Co. 2 Denio, 82;
New trial granted.