Silver v. Western Assurance Co.

33 A.D. 450, 54 N.Y.S. 27

Opinion

O’Brien, J.:

The action was brought to recover upon a fire insurance policy, and payment was resisted upon the grounds (1) that there had been no appraisal; (2) that the property affected by the fire was not the sole and. exclusive property of the assured ; (3) that the assured had sworn falsely as to the ownership of the property; and (4) that the fire was of incendiary origin.

To sustain the 2d,. 3d and 4th assertions, little or no evidence was presented by the defendants; but the learned trial judge properly submitted the claims to the jury, who having decided them in the plaintiff-s favor, we find no valid grounds in the record for disturbing their verdict.’-

This leaves the principal question on appeal the one of appraiser ment; and in discussing that question, we assume, in the absence of a- copy of the policy of insurance, that the conditions were, as claimed by the appellant, the usual conditions of the standard form in this State. Thereunder the company had an undoubted right after the fire to demand and obtain an appraisement; but it is clear that it could waive stich right as a matter of fact, and by neglecting to demand an appraisement subsequent to the five, or to take any position with regard thereto, it would as a matter of law be deprived of its right to demand an appraisal. There is force in the contention of the plaintiff that the company had ' assumed such an attitude that it could not demand an appraisal without being inconsistent, in that as a matter of law it had waived the rigid to an appraisal by resisting payment upon the ground that the assured had sworn falsely as to ownership, and thereafter had set fire to the property, and that thus no liability whatever was created under the policy. It is unnecessary, however, to decide that question, for we think it appears as a matter of fact that there was a waiver of the right to an appraisement.

The fire occurred November 14, 1895. The assured submitted formal proofs of loss on November twenty-second. On the fourteenth of December, no reply having been received from the company, the assured signed an agreement for submission to appraisers and forwarded the same to the company for signature, with a request for information regarding an appraisement. There was no reply until January 14, 1896, when the., attorney for the assured received an inquiry from the company for the, address of the appraiser selected. This addre'ss was at once furnished, but no further word was received from the company, and sixty days having passed after submission of the formal proof of loss, suit was commenced on January twenty-eighth. . "We have not overlooked the fact that a letter was sent to the appraiser named in care of the assured at the latter’s address and was returned to the sender marked “ cannot be found.” The company and its. attorney both knew the address of the attorney for the assured who was endeavoring to obtain payment of the policy, and no good explanation is .-offered' why, if sincere in their effort to obtain' the appraiser’s address,..they did not make inquiry of the attorney. When. this was done' later, the information was promptly furnished. These facts clearly show that the assured was unreasonably kept in ignorance as to whether the company desired an appraisal or not. No positive steps were taken by the company, and the only steps towards an appraisement were taken by the assured, who thereby showed a willingness to have such an appraisement. We must, therefore, conclude that, independent of other considerations,, the negligence of the company to request an appraisement, or- to state its intention ór desire for one within the sixty days following the submission of formal proof of loss, was a waiver on its - part of its privilege under the policy to demand an appraisal.

The judgment should, therefore, be affirmed, with' costs.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment affirmed, -with costs..