Messelback v. Sun Fire Office
| Decision Date | 09 December 1890 |
| Citation | 122 N.Y. 578,26 N.E. 34 |
| Parties | MESSELBACK v. SUN FIRE OFFICE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from an order of the general term of the third judicial department reversing a judgment in favor of the plaintiff entered on the report of a referee, and granting a new trial.
Eugene Burlingame, for appellant.
A. H. Sawyer, for respondent.
June 9, 1883, the defendant insured the plaintiff against such loss or damage, not exceeding $1,500, as should be caused by fire during the next three years to a building then in process of erection, which, when completed, was to be occupied as a dwelling. The policy contained, among others, the following provisions: ‘This policy shall become void unless consent in writing is indorsed hereon by or on behalf of the society in each of the following instances: * * * If any building hereby insured be or become vacant or unoccupied for the purpose indicated in this contract.’ The building was finished August 1, 1883, and thereafter was occupied as a dwelling by a tenant, until April 17, 1884, when he left, and the building remained unoccupied until April 26, 1884, when it was totally destroyed by fire. The building was ‘unoccupied,’ within the meaning of the policy. Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482. No written consent was indorsed on the policy that it should continue in force while the building was unoccupied, and it is conceded that no recovery can be had unless the evidence establishes a waiver of this provision. Undoubtedly, a party to a contract which contains a provision that it shall not be changed except by a writing signed by him may, by conduct, estop himself from enforcing the provision against a party who has acted in reliance upon the conduct, and so the acts of an agent who possesses the power of the principal, or who has been held out by the principal to possess his power in respect to the provision alleged to have been altered or changed, may also estop his principal. But, under a policy containing a provision that the insurer ‘shall not be bound * * * by any act of or statement made * * * by any agent * * * which is not authorized by this policy, or contained therein, or in any written paper mentioned therein,’ the power can only be exercised in the mode prescribed, unless it is shown that the agent possessed, actually or apparently, the power of his principal in respect to the provision alleged to have been waived. Walsh v. Insurance Co., 73 N. Y. 5;Marvin v. Insurance Co., 85 N. Y. 278.
Upon the question of waiver, the plaintiff testified: ...
To continue reading
Request your trial
-
Kahn v. Traders Insurance Company
...85 id., 278; Weed v. Ins. Co., 116 id., 106; Baumgartel v. Ins. Co., 32 N.E. 990; Quinlan v. Ins. Co., 31 N. E., 31; Messelbach v. Norman, 122 N.Y. 578; Allen v. Ins. Co., 123 id., 6; Hankins v. Ins. Co., 70 Wis. 1; Knudson v. Ins. Co., 75 id., 198; Shugart v. Ins. Co., 55 Cal. 408; Enos v.......
-
Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minnesota
... ... to review ... 4. C ... S., secs. 7163 and 7166, do not make papers, records and ... files in the office of the clerk below a part of the official ... record on appeal unless specified by the praecipe of ... appellant. If the praecipe as filed fails to ... 1140; ... Kentucky Vermillion Mining & Concentrating Co. v. Norwich ... Union Fire Ins. Soc., 146 F. 695, 77 C. C. A. 121; ... Messelback v. Norman, 122 N.Y. 578, 26 N.E. 34.) ... "It ... is frequently customary to insert in the modern policy ... certain stipulations as to ... ...
-
Burlington Insurance Co. v. Lowery
... ... the appellant upon a policy of fire insurance upon a dwelling ... house of the appellee which was consumed by fire, while the ... ...
-
Harry Vinton v. Atlas Assurance Company, Ltd
... ... as Applied to Dwelling House---Waiver of Policy---Provision ... Involving Forfeiture of Fire Insurance---Burden of ... Proof---Provision as to Unoccupancy as Subject of ... Security Ins. Co. v ... Fay, 22 Mich. 467, 7 A. R. 670, 672, 673; ... Messelback v. Norman, 122 N.Y. 578, 26 N.E ... 34, 35. It has been held that an absolute denial of liability ... may, in turn, be waived (Messelback v. Sun Fire ... Office, supra; Bush v. Hartford ... Fire Ins. Co., 222 Pa. 419, 433, 71 A. 916, 920, 921); ... but in ... ...