Hill v. London Assur. Corp.

9 N.Y.S. 500, 16 Daly 120, 30 N.Y. St. Rep. 539, 1890 N.Y. Misc. LEXIS 232

• Court: New York Court of Common Pleas
• Decided: April 7, 1890
• Status: Published

Opinion

Larremore, C. J.

It is immaterial what our own views might have been upon the main question, if it had arisen here for the first time, because we think we must decide it on clear and unmistakable authority. We can discover no distinction in principle between the case at bar and Walsh v. Insurance Co., 73 N. Y. 5. In that case it was expressly provided in the policy that no officer, agent, or representative of the company should be held to have waived any of the terms and conditions of the policy unless such waiver was indorsed thereon in writing. The court of appeals held that this was a plain limitation upon the power of agents, and could mean “nothing less than that agents shall not have the power to waive conditions except in one mode, viz., by an indorsement on the policy. ” The provision on that subject in the policy before us is, if anything, more explicit in its terms than the one under consideration in Walsh v. Insurance Co., and all the reasons therein given for holding the plaintiff bound by such condition apply here. The fact has not been overlooked that several later cases in the court of appeals have been distinguished from Walsh v. Insurance Co., supra; but the reason for such distinction was that in such later cases the power and authority of the agent was not specially defined and limited, as they are in the ease at bar. The ground taken is that as the company itself could dispense with a condition by oral consent as well as by writing, the general agent could do the same unless specially restricted. Steen v. Insurance Co., 89 N. Y. 316. But obviously the reason for such distinction does not exist in the ease before us. The agent’s authority is restricted, if anything, more closely than in Walsh v. Insurance Co., and we regard this case as controlling. We think the learned trial judge also erred in holding under this particular policy that a waiver could be inferred by the reference of the matter after the fire to the adjuster for in vestigation and appraisal. It is well settled that if, after knowledge of any alleged forfeiture, the company “recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived.” Titus v. Insurance Co., 81 N. Y. 410. But this doctrine of implied waiver cannot be invoked where, as in the policy under consideration here, there is an express provision that the company may cause investigation and appraisal to be made without being deemed to have waived any forfeiture. Defendant’s motion to dismiss the complaint should have been granted, and the judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur.