Glazer v. Home Ins. Co.
| Decision Date | 19 November 1907 |
| Citation | 82 N.E. 727,190 N.Y. 6 |
| Parties | GLAZER v. HOME INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Joseph Glazer against the Home Insurance Company. From a judgment of the Appellate Division (98 N. Y. Supp. 979,113 App. Div. 235), affirming a judgment of the Appellate Term (96 N. Y. Supp. 136,48 Misc. Rep. 515), reversing a judgment of the City Court of New York, plaintiff appeals.
Roger Foster and Sigmund S. Rotter, for appellant.
Alfred B. Nathan, for respondent.
The plaintiff sought to recover the amount of a loss under a fire insurance policy. The action was brought in the City County of New York City. The policy insured the plaintiff against loss or damage of certain articles of furniture and personal property contained in the dwelling house where he lived; the building also containing the store in which his business was transacted. There was a fire in the building and some of the furniture was damaged, but not wholly destroyed. The whole controversy arose from a dispute between the parties with respect to the amount of damages. There were negotiations between the parties looking towards a settlement after the fire. The plaintiff claimed $250, and the defendant's adjuster who examined the property insured offered to settle the claim for $38, which was refused.
After three trials and at least as many appeals, with varying and conflicting results, the case comes here upon an appeal by the plaintiff, by permission of the court below, from a judgment of the Appellate Division, which affirmed an order of the Appellate Term reversing a judgment in favor of the plaintiff entered upon a verdict in his favor for $235, and an order denying a motion by the defendant for a new trial. The defendant succeeded upon the appeals in upsetting the verdict upon one or both of two theories, which may be stated as follows: (1) That the plaintiff, having alleged full performance of the conditions of the policy, could not have been allowed to prove a waiver of the conditions on the part of the defendant, and this presented a question of pleading; (2) that even though the plaintiff was entitled to give such proof, under the condition of the pleadings the proof actually given was not sufficient to authorize the jury to find any waiver, and so the finding was without evidence to sustain it. The defense was based entirely upon the omission of the plaintiff to present the proofs of loss required by the policy. The complaint alleged generally that the plaintiff had fulfilled all the conditions of the policy on his part, and this allegation was followed by another, namely, that 60 days and more before the commencement of the action the plaintiff served upon the defendant, as the proofs of loss, a complete inventory of the property destroyed and injured, with the quantity and cost of each article and the amount claimed thereon, and that the same was retained by the defendant without objection, and that no further proof was required or furnished. While the word ‘waiver’ is not found in the pleading, yet the facts relied upon to establish that defense to the claim that the conditions of the policy were not fulfilled were, we think, sufficiently stated. None of the cases cited decide that under such a statement in a complaint on a policy of insurance the plaintiff could be precluded from asserting that strict compliance with the requirements of the policy to furnish formal verified proofs of loss was waived by the insurer, and so we think that the plaintiff's complaint was sufficient to enable him to avail himself of a waiver if proven.
The provision of the policy in respect to proofs of loss is, in substance, that, if a fire occurred, the insured should...
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