Peabody v. Satterlee

• Decision Date: 12 March 1901
• Citation: 59 N.E. 818,166 N.Y. 174
• Parties: PEABODY v. SATTERLEE et al.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 174

59 N.E. 818

PEABODY

v.SATTERLEE et al.

Court of Appeals of New York.

March 12, 1901.

Appeal from supreme court, appellate division, Second department.

Action by Rushton Peabody against Douglass R. Satterlee and another. From an order of the appellate division (55 N. Y. Supp. 363) reversing a judgment of the trial term dismissing the complaint and ordering a new trial, defendants appeal. Reversed.

O'Brien, Martin, and Vann, JJ., dissenting.

Harry S. Bandler, for appellants.

Mortimer M. Menken, for respondent.

BARTLETT, J.

This appeal is now presented upon a reargument ordered by the court. The action is brought upon a policy of fire insurance issued by the defendants, as attorneys for the ‘Underwriters at the Lloyds of New York City,’ covering property that was situated in the city of Buffalo, to recover for a total loss. A single question is presented under the provisions of the policy, the material portions of which read as follows: ‘If fire occur, the insured shall give immediate notice of any loss thereby in writing to the attorneys of the underwriters, * * * and within sixty days after the fire, unless such time is extended in writing by the attorneys of the underwriters, shall render a statement to the attorneys of the underwriters, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire. * * *’ Here follow the usual requirements in proofs of loss. The contention of the plaintiff is that his assignor has fully complied with this provision as to proofs of loss, and he is, therefore, entitled to recover. It remains to consider the undisputed facts in order to determine whether this contention can be sustained. The fire occurred on the 22d day of August, 1896. On the 23d day of September, 1896, Edward S. Hawley, as attorney in fact for Mr. Hamlin, the insured, and plaintiff's assignor, prepared and verified proofs of loss and mailed them to the defendants, the attorneys for the underwriters in the city of New York. On the 30th day of September, 1896, the proofs of loss were returned to Mr. Hamlin, the insured, by the defendants, with a letter, which, after acknowledging receipt of the alleged proofs, reads: ‘These papers were signed and sworn to by Edward S. Hawley as your attorney. We cannot accept these papers as proofs of loss, not having been signed by you personally and sworn to by you. We reject these papers for reason as above stated, and return them to you to be properly executed by yourself, and not by an attorney.’ On the 21st day of October, 1896, proofs of loss sworn to by Mr. Hamlin, the insured, were sent to the defendants by registered mail, and were received in the post office in New York City on the 22d day of October, 1896, at 8:30 p. m., 61 days after the fire occurred, they having been mailed in Buffalo on the sixtieth day after the fire. These are the facts upon which is raised the question whether the insured, according to the provisions of the policy, did, within 60 days after the fire, render a statement to the attorneys of the underwriters, signed and sworn to by him; in other words, can it be held, as matter of law, that the insured rendered these proofs of loss to the defendants by depositing them in this state. Rathbun v. Acker, 18 Barb. 393; after the fire?

The rule of the common law that, where notice is required to be given, personal notice is meant, has long been recognized in this state. Rathbun v. Acker, 18 Barb. 393;McDermott v. Board, 25 Barb. 635; People v. Lockport & B. R. Co., 13 Hun, 211; People v. Hoboken Turtle Club (Sup.) 14 N. Y. Supp. 76;Wachtel v. Society, 84 N. Y. 31. In the case last cited. Judge Danforth, speaking for this court, said: ‘In the absence of any agreement by a member of a corporation, or any provision in the charter or by-laws for a different mode of service, it should be personal, as required by common law, where the object is to deprive a party of his rights or property.’ In Crown Point Iron Co. v. AEtna Insurance Co., 127 N. Y. 608, 28 N. E. 653,14 L. R. A. 147, a policy holder sent by mail, for cancellation, several policies to the agent of the insurance company, but before they were received the property was destroyed by fire. It was contended by the insurance company that the mailing of the policies with a letter stating the object sufficed to cancel them, because it was equivalent to an acceptance of a proposition by mail, and cases of that character were cited in support of the position. The court, however, held that these cases had no application because no negotiation was pending, and no contract was proposed. Judge Vann, in writing for the court, said: ‘The plaintiff did not make any offer to the insurance companies that might or might not be accepted. It sought to do an act that would be binding on the companies whether they were willing or not. That act was a surrender of the policies with the request that they be terminated, and the act could not be complete until the request reached the companies or...