190 N.Y. 12, Draper v. Oswego County Fire Relief Ass'n

Citation:190 N.Y. 12
Party Name:OLIVER S. DRAPER et al., Appellants, v. THE OSWEGO COUNTY FIRE RELIEF ASSOCIATION, Respondent.
Case Date:November 19, 1907
Court:New York Court of Appeals
 
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190 N.Y. 12

OLIVER S. DRAPER et al., Appellants,

v.

THE OSWEGO COUNTY FIRE RELIEF ASSOCIATION, Respondent.

New York Court of Appeal

November 19, 1907

Argued October 23, 1907.

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COUNSEL

Irving G. Hubbs for appellants. The company having elected to examine the insured at Oswego, thereby putting him to trouble and expense, waived its right to claim the invalidity of the policy as to all facts within its knowledge at the time. (Wise v. P. Ins. Co., 18 Wkly. Dig. 128; 101 N.Y. 637; Titus v. G. F. Ins. Co., 81 N.Y. 410; Pratt v. D. H. Ins. Co., 130 N.Y. 206; Nugent v. M. Ins. Co., 106 A.D. 308; Marshall v. Ins. Co., 106 A.D. 308; Roby v. Ins. Co., 120 N.Y. 510; McNally v. Ins. Co., 137 N.Y. 396; Lobee v. Ins. Co., 12 Misc. 499; Harrington v. Ins. Co., 21 N.Y.S. 31; Walker v. Ins. Co., 156 N.Y. 635.)

S. C. Huntington for respondent. There is no evidence of waiver. (Nelson v. T. Ins. Co., 181 N.Y. 472; Allen v. Ins. Co., 123 N.Y. 6; Matter of Atty.-Gen. v. C. L. Ins. Co., 93 N.Y. 70; Olmstead v. F. M. Ins. Co., 50 Mich. 207.) This is not the ordinary case of waiver or forfeiture, and the usual technical rules do not apply. This is a case of excepted

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risk never assumed by defendant. (Jones v. H. Ins. Co., 117 N.Y. 107; Matson v. F. B. Ins. Co., 73 N.Y. 310; Ins. Co. v. Boon, 95 U.S. 117; 1 Joyce on Ins. 22; Sklencher v. Fire Assn., 72 N. J. L. 48; 4 Cooley on Ins. 3064; May on Ins. [4th ed.] § 426; Curry v. Comm. Ins. Co., 10 Pick. 535; M. Ins. Co. v. Hodge, 149 Ill. 298.)

CULLEN, Ch. J.

This action was brought to recover upon a fire insurance policy issued by the defendant, which is a corporation incorporated under the provisions of chapter 362, Laws of 1880, entitled 'An act to provide for the formation of county co-operative insurance companies.' The 7th by-law of the defendant, which was printed in full on the policy, provided: 'Where fire is used in any building upon the premises within one hundred feet of any insured building for the purpose of making sugar or stripping tobacco or curing hops or drying apples this association will not be liable for any loss resulting from such fire. Nor will this association be liable for any loss resulting from any open fire, built by the insured with his knowledge or consent, within fifty feet from any insured building.' On April 24th, 1905, the plaintiffs' buildings were destroyed by fire. The fire was caused by a spark from an open fire (bonfire) which the plaintiffs ignited to burn up rubbish and which fire was forty feet distant from the barn. Section 10 of the by-laws provided: 'In case of loss by fire or lightning the loser shall give notice to the secretary and director of the subordinate grange and said director shall notify the directors of two adjoining granges within five days, whereupon the said directors shall proceed to examine the loss or damage and to adjust the same. In case the parties cannot agree then said directors shall notify the...

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