57 N.Y. 500, Underwood v. Farmers' Joint-Stock Ins. Co.

Citation:57 N.Y. 500
Party Name:WILLIAM H. UNDERWOOD, Respondent, v. THE FARMERS' JOINT STOCK INSURANCE COMPANY, Appellant.
Case Date:May 01, 1874
Court:New York Court of Appeals
 
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Page 500

57 N.Y. 500

WILLIAM H. UNDERWOOD, Respondent,

v.

THE FARMERS' JOINT STOCK INSURANCE COMPANY, Appellant.

New York Court of Appeal

May 1, 1874

Submitted Jan. 17, 1874.

Page 501

COUNSEL

Pratt, Mitchell & Brown for the appellant. The court erred in refusing to nonsuit plaintiff. (34 Barb., 213.) Selover, defendant's local agent, had no power to bind defendant by his statements after the loss, or to waive the seventh condition of the policy.

Page 502

(16 Barb., 316; 13 Id., 246; 24 Id., 25; 1 Hill, 572; 4 Wend., 392; 7 Id., 281; 17 N.Y. 131; 5 Duer, 393.)

A. P. Smith for the respondent. The affidavit drawn by defendant's general agent and sworn to by plaintiff was a full compliance with the conditions annexed to the policy. (Clark v. N. E. F. Ins. Co., 6 Cush., 342; Underhill v. Agawam M. F. Ins. Co., Id., 44 a; Bumstead v. Ins. Co., 2 Kern., 81.) The condition requiring proof of loss to be furnished in ten days was waived by defendant through its agent and secretary. (Ames v. N.Y. U. Ins. Co., 14 N.Y. 253; Trustees First Bap. Ch. v. Bklyn. F. Ins. Co., 19 Id., 305; Goit v. Nat. Pro. Ins. Co., 25 Barb., 189; Owen v. Farmers' J. S. Ins. Co., 57 Id., 518; Sheldon v. At. F. and M. Ins. Co., 26 N.Y. 460; Boehen v. Wmsburg. Ins. Co., 35 Id., 131; 2 Greenl. Ev., 357, n. 2, and cases cited; Bodle v. Chenango Co. M. Ins. Co., 2 Comst., 53; Wood v. Pough. Ins. Co., 32 N.Y. 619; Bumstead v. Mut. Ins. Co., 2 Kern., 81; Post v. Etna Ins. Co., 43 Barb., 351; 25 Wend., 74, 379; 3 Comst., 122; 9 Barb., 191; 16 Id., 254; Francis v. Ocean Ins. Co., 6 Cow., 404; Etna Ins. Co. v. Tyler, 16 Wend., 402; O'Neil v. Buff. F. Ins. Co., 3 Comst., 122; Underhill v. Agawam F. Ins. Co., 6 Cush., 440; Vos v. Robinson, 9 J. R., 192; Ripley v. Etna Ins. Co., 30 N.Y. 164; Savage v. Ins. Co., 4 Bosw., 1; Bk. of U.S. v. Davis, 2 Hill, 451-461; Ingalls v. Morgan, 10 N.Y. 178-184; McLaughlin v. Wash. Ins. Co., 23 Wend., 525; Norton v. R. and S. Ins. Co., 7 Cow., 645; Gilbert v. N. S. Ins. Co., 23 Wend., 43.)

EARL, C.

Upon the trial, the judge submitted to the jury but one question of fact, to wit: whether the plaintiff, himself, set fire to the barn insured; and charged them to render a verdict for the plaintiff if they found that question in his favor. To this portion of the charge defendant's counsel excepted. It is not disputed that it was, by the policy, a condition precedent to plaintiff's right of recovery that he

Page 503

should deliver to the company a verified account, in writing, of his loss, within ten days after the loss. This condition was part of the contract of insurance; and effect should be fairly given to it as to every other part of the contract. It is undisputed that no account of the loss was delivered to the defendant or any of its agents until about one month after the loss. But the judge, at the trial, held, as matter of law, upon the evidence, that this condition had been waived by the defendant, and hence, that non-compliance with it on the part of the plaintiff did not defeat the action. It therefore becomes...

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