Kiernan v. Dutchess County Mutual Insurance

29 N.Y.S. 1126, 87 N.Y. Sup. Ct. 602, 61 N.Y. St. Rep. 720, 80 Hun 602

• Court: New York Supreme Court
• Decided: July 14, 1894
• Status: Published

Opinion

HERRICK, J.

The most serious question raised upon this appeal is upon the admissibility of a chattel mortgage in evidence. It is contended that the mortgage is a forfeiture of the policy, either entirely or in part. It seems to me that the forfeiture was waived by the acts of the defendant. Right after the fire the president of the company visited the scene of the fire, inspected the ruins, and conversed with the plaintiff; and it was after that that the plaintiff, with the defendant’s agent, made an arrangement for an appraisal, and an appraisal was made. Proofs of loss were also subsequently put in, and accepted by the defendant. It seems to me that these acts constitute a waiver. Brink v. Insurance Co., 80 N. Y. 108; Titus v. Insurance Co., 81 N. Y. 410; Roby v. Insurance Co., 120 N. Y. 510, 24 N. E. 808; Trippe v. Society, 140 N. Y. 23, 35 N. E. 316. The effect of the chattel mortgage as a forfeiture having been waived, the defendant was not injured by the court not receiving it in evidence. I see no occasion for an opinion. The judgment should be affirmed, with costs. All concur.