Draper v. Oswego County Fire Relief Ass'n
Decision Date | 19 November 1907 |
Citation | 190 N.Y. 12,82 N.E. 755 |
Parties | DRAPER et al. v. OSWEGO COUNTY FIRE RELIEF ASS'N. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division; Fourth Department.
Action by Oliver S. Draper and another against the Oswego County Fire Relief Association. From an order of the Appellate Division (101 N. Y. Supp. 168,115 App. Div. 807), reversing a judgment for plaintiffs and an order denying defendant a new trial, plaintiffs appeal. Affirmed.
Irving G. Hubbs, for appellants.
S. C. Huntington, for respondent.
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, p. 540, Laws 1880, entitled, ‘An act to provide for the formation of county co-operative insurance companies.’ The seventh by-law of the defendant, which was printed in full on the policy, provided: On April 24, 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 40 feet distant from the barn. Section 10 of the by-laws provided: Three of the defendant's board of directors went to the place of the fire for the purpose of adjusting the loss. They found that the fire was set within 50 feet of the barn, and told Draper that they could not adjust the loss, but would make out proofs of loss so they could be presented to the board of directors. Proofs of loss were made and verified by Draper and by him sent by mail to Welling, the secretary of the defendant. Thereafter a meeting of the board of directors was called, and Potter, one of the directors, wrote to the plaintiff Draper, informing him of the date of the meeting and stating that the directors desired him to be present. Draper went 40 miles to Oswego, the place of the meeting, paying his fare both ways, attended the meeting, was examined as to the loss, and told that he could be excused. No formal action in relation to the adjustment of the loss by the board of directors appears to have been taken. Nothing further was done and this action to recover the loss was commenced. At the close of the evidence, the defendant moved to dismiss the complaint, which motion being denied and exception to that ruling taken the cause was submitted to the jury, which found a verdict for the plaintiffs. The learned trial judge charged that lighting the bonfire was a breach of the condition of the policy, and the plaintiffs could not recover unless the jury should find the defendant had waived that breach. He said: Waiver was the only issue submitted to the jury, and to the submission of that issue the defendant excepted. The Appellate Division reversed the judgment entered upon the verdict and the order denying defendant's motion for a new trial, the order of reversal stating that it was made upon questions of law only, the facts having been examined and no error found therein.
The law as to what constitutes a waiver was correctly laid down by the trial judge substantially in the language used by this court in Kiernan v....
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