Warren v. Phœnix Ins.

19 N.Y.S. 990, 47 N.Y. St. Rep. 421, 65 Hun 621

• Court: New York Supreme Court
• Decided: July 22, 1892
• Status: Published

Opinion

Barnard, P. J.

The defendant issued a fire policy of insurance to the plaintiff in 1889 upon his household effects. At the time of the issuing of the policy these insured goods were in a house occupied by plaintiff in Middle-town, Orange county, N. Y. The policy contained a clause that the insurance should continue while located as described in the policy, and while contained in the frame dwelling No. 21 West street, Middletown. In August following, the plaintiff moved to Deckertown, N. J., and on the 2d of September, 1890, the insured property was destroyed there by fire. The policy did not cover the loss by its terms. To show an alteration in the contract, the plaintiff proved a letter from herself to defendant’s agents dated August 20, 1890, stating that she and her family had moved to Deckertown without paying the premiums, and that if the agents would send the amount due on the policy she would send it. This was done on August 20, 1890, and was paid by plaintiff a few days thereafter, amounting to $2.10. The notice was insufficient to put the fact before the agents that the insured property had been removed from the building in which it had been insured. It was nothing more than a request for the unpaid premiums. The evidence of the conversation with the agent Taylor was improperly received, without proof of an agency which would authorize the agent to waive the contract as made by the policy. No such proof was given. The policy required all waivers to be indorsed in writing by agents, and that no agent should be deemed to have power or to have waived a condition unless indorsed on the policy. No waiver was indorsed in writing, and none exists, according to the contract. Walsh v. Insurance Co., 73 N. Y. 5; Marvin v. Insurance Co., 85 N. Y. 278. The judgment should therefore be affirmed, with costs.