Uhrig v. Williamsburg City Fire Ins. Co.

• Decision Date: 09 February 1886
• Citation: 4 N.E. 745,101 N.Y. 362
• Parties: UHRIG v. WILLIAMSBURG CITY FIRE INS. CO.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 362

4 N.E. 745

UHRIG

v.WILLIAMSBURG CITY FIRE INS. CO.¹

Court of Appeals of New York.

Filed February 9, 1886.

Albert G. McDonald, for appellant.

Patrick Keady, for respondent.

EARL, J.

The plaintiff held a policy of insurance issued by the defendant upon certain personal property, and the property was destroyed by fire in July, 1882. The policy contained this clause:

‘The amount of sound value and of damage to the property may be determined by mutual agreement between the company and the assured; or, failing to agree, the same shall then, at the written request of either party, be ascertained by an appraisal of each article of personal property, or by an estimate in detail of a building, by competent and impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of their disagreement; and if the said appraisers fail to agree they shall refer the differences to such umpire; and the award of any two, in writing, under oath, shall be binding and conclusive as to the amount of such loss or damage, but shall not decide as to the validity of the contract, or any other question except the amount of such loss or damage.’

Among other things in its answer, the defendant alleged that the plaintiff and defendant failed to agree upon the damage occasioned by the fire, and that on or about the eleventh day of August, 1882, it served upon plaintiff a written request that the amount of damages sustained by him from the fire should be ascertained and determined by appraisers, to be selected as required by the policy, and offered to select and appoint an appraiser for that purpose on its behalf, and that he wholly refused to submit to such appraisal, or appoint an appraiser for that purpose, and refused to comply with the terms and conditions of the policy in that respect. Upon the trial it appeared that the fire occurred on Sunday, the thirtieth of July; that on the next day the plaintiff notified the defendant of the fire and of the loss; and on the second day of August it requested an arbitration under the policy, and he assented; that thereupon he selected one De Andreau, and the defendant one Magnus, as arbitrators, and an agreement in writing was executed by the parties submitting the appraisal of the damages to the arbitrators thus selected; and that the arbitrators failed to agree. The defendant gave evidence tending to show that it subsequently made plaintiff an offer to appoint a new arbitrator in the place of Magnue, and also that Magnus offered to unite with De Andreau in selecting an umpire, but that the plaintiff and De Andreau refused. The plaintiff, as a witness in his own behalf, gave evidence tending to show that, after the arbitrators failed to agree, he requested the defendant to appoint another arbitrator, and that he asked Magnus to agree with De Andreau in appointing an umpire, and they did not accede to his requests.

Under the arbitration clause it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy, and if either party acted in bad faith, so as to defeat the real object of the clause, it absolved the other party from compliance therewith; and if either party refused to go on with the arbitration, or to complete it, or to procure the appointment of an umpire, so that there could be an agreement upon an appraisal, the other party was absolved. A claimant under such a policy cannot be tried up forever, without his fault and against his will, by an ineffectual arbitration. The evidence tended to show that the defendant failed and refused to go on with that arbitration. In the mean time, partly under the orders of the city authorities, the offensive debris and broken and injured articles about the plaintiff's premises had, to a great extent, been removed, so that an appraisal had become to a large extent impracticable. There was some evidence tending to show, and from which a jury might have inferred, that the defendant was not acting in good faith to procure a speedy appraisal, and was interposing this clause in the policy for the purpose of forcing a compromise from ...