Paltrovitch v. Phoenix Ins. Co. of Hartford

• Decision Date: 19 June 1894
• Citation: 37 N.E. 639,143 N.Y. 73
• Parties: PALTROVITCH v. PHOENIX INS. CO. OF HARTFORD.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 73

37 N.E. 639

PALTROVITCH

v.PHOENIX INS. CO. OF HARTFORD.

Court of Appeals of New York.

June 19, 1894.

Appeal from supreme court, general term, fifth department.

Action by Simon Paltrovitch against the Phoenix Insurance Company of Hartford, Conn., on two fire insurance policies. From a judgment of the general term (23 N. Y. S. 38) affirming a judgment in favor of plaintiff entered on the verdict of the jury, and an order denying a motion for new trial, made on the minutes of the court, defendant appeals. Affirmed.

C. M. Bushnell, for appellant.

Moses Shire and Edward Jellenck, for respondent.

FINCH, J.

The loss by fire, which the plaintiff seeks to recover, occurred in the city of Buffalo on the 11th day of May, 1891. The insured made out and forwarded his proofs of loss, which reached the defendant company on the 15th of the following June. Accompanying such proofs of loss was a certificate in the substantial form required by the policy, which was signed by A. J. Roehner, a notary public. The policy provides that such a certificate, made by the magistrate or notary ‘living nearest the place of the fire,’ shall be furnished by the insured, if required. No such requirement had been made when the proofs of loss were sent, but the certificate was furnished voluntarily, and in advance, to meet the emergency of a possible demand for it. The proofs of loss were kept until the 8th day of July by the company, and then returned to the insured, with a notice that the company required a certificate from the notary ‘living nearest the place of the fire,’ and that the certificate furnished would not be accepted as a compliance with the policy. There was no statement that other notaries were found to be living nearer the place of the fire, and stating their names and residences, as good faith, and a moderately fair treatment of the insured, required; but he was left to carry on his own investigations about notaries in his own way, and at his own risk. It turned out that three other notaries lived nearer ‘the place of the fire,’ in one sense of the phrase. This company, in its anxiety for its precise and rigid rights, hired a city engineer to measure the distances with a tape, and both by way of the streets, and in an air line over the tops of the houses, and so was able to prove that there were three notaries who boarded and slept a few hundred feet nearer the place of the fire than the one whom the insured supposed to be the nearest. But these later-discovered notaries had their offices and transacted their official business at much great distances away, and there had their signs, and espected their customers. Where they boarded and slept they had no signs, and there was nothing to indicate their presence and existence; and the plaintiff, unaware of their...