
    Hyman Yendel, Respondent, v. The Western Assurance Co., Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    l-if iFire insurance M-Insnrer "entitled ¡tofán,árMtrHtipn-^iDefensé.-i'Jf
    
    tioi'.’-A Gondiíiohueo'ntMñedOiii a policy-of-fire insúrance;iproyiding'forr,a'ii). '?qr.¿bbitratipn'¡;ánd;rthe; :determinatipm",of Rthie 'lo'ss f-byrappraisers-; -chosenuRÍÍorfcSadti side, T-ywftiL :péwer in tiiem":to select *an. -tm’pirer-in¡theMyent; jroioffiabdaspüte,. .iis::valifl,<;ánd. -ifi? at.-."be itt<fe(glr^ocg^Us*;.,yB"Sb,b$rd3|9r o i-insured,í it may 'be-inyoked -asba, defense- by-; thá'icompany^.whetihér, * i-: nr: not its jóbservaiíce.i'sf .a--condition, precedent.-¡tp: ;theí ;c6iusértof -áction .í1;-of'dthei9nsure'díi In -.>?-T:??f- E ?.<;■:■■■•; .ti íb-7 r-E ¡yí/'o-'-i ?..!>r-y «trf.t
    Sy 'Sámé —;&vbÍááncé'Yf -atí-arbitratióñ' by'tiré:insüred¡ ■' No =-s
    'Whébe-tbe- insurer ' is- not" in default,! it is" eút-ittéd'' tb!i’ea'sónablfe : 11 -efforts upon 'the -part" -of' the mSuredr'l‘obliing "to- the ’ áccbmpüihm’eSí of the appraisement,- :¿hd where it appeái’s'that the' ápprálséf' of -tbe ' instirer inadéi but á slight " attempt to- meet the " appraiser bf-the ,.i f .. ..... I. .- . - . J ,.,.r.v ^.1. insured, the failure apaounts to-a'defense to the"insurer.- ■■■ •
    
      3. Same — Insurer may insist on arbitration, although it pleads fraud.
    The fact that the answer of the insurer denies liability under the policy because of the fraud of the insured, does not amount" to a • waiver by the insurer of the right secured to it by the policy to have an appraisal or arbitration of the loss.
    4. Same — Eight to have the fact of a "total loss established by arbitration. ' ~
    Although as a general rule an appraisal is not necessary where it is conceded that the insured goods have been totally destroyed, yet where the words of a policy cover, a case where there is a dispute as to whether or not the loss was total, the insurer is entitled to have that question determined by arbitration.
    Appeal from judgment rendered by the justice of the Fifth Judicial District Court in favor of the plaintiff.
    Action upon policy of fire insurance.
    William D. Tyndall, for respondent.
    Edgar J. Nathan, for appellant.
   Bischoff, J.

The policy in suit contained the customary arbitration. clause, and the determination of the loss by appraisers chosen for each side, with power to select an umpire in the event of dispute between them, was a step which the insurer1 was entitled to have taken in advance of an action by the insured.

The condition was valid and enforcible and, if not fairly Complied with by the party claiming under the policy, if could be invoked as a defense at least, whether or not its -observance was a - condition1 precedent to the plaintiff’s cause of action, Uhrig v. W. C. F. Ins. Co., 101 N. Y. 362; Davenport v. Ins. Co., 10 Daly, 535; Seward v. City of Rochester, 109 N. Y. 164.

Such a defense .was pleaded to this action and, as we view the record, was' supported by evidence which was not well open to a contrary construction..

Appraiser’s had been appointed on behalf of both parties, for the defendant one -Cummings -and for the plaintiff - one Stevenson, hilt Cummings .withdrew before arr appraisal had been attempted and one Freeman was substituted by the defendant. -

' As rto¡ the-,-eans© of Cummings’ withdvaVal the 'evidence -is''not -very -clear but we cannot find that it: was,'due to.--any "fault of-the defendant,' and the substitution of another appraiser was in no manner opposed, by the plaintiff; at the time it appears the. latter acquiesced in the defendant’s action as to this.

Informed of the -appointment and to arrange a meeting for the ' appraisal, Stevenson sent a postal card to Ereeman stating that he would call at thé latter’s office on March 26, 1897, at 10:30 a. m., bnt. no meeting took place on the day thus named, and, the action being commenced shortly afterward with no further efforts toward an appraisal being made by the plaintiff, it became a question as to which of the parties was in fault with regard to the failure of . the meeting.

Ereeman testified positively that he had remained in his office from the hour appointed by Stevenson until 11:30 and that he did not appear, while Stevenson’s testimony was that he had called and that Ereeman -then was absent. He was not able to- state, on Ms direct examination, what time he. had called, but at the end of the trial he testified that the time was either 9:30 or 10:3Ó¿

A letter was sent to Ereeman by the plaintiff’s attorney, on the same day, .purporting to contain a statement of the facts of the matter,, and from this it appeared that Stevenson had called at 9:30, which was assumed by the writer to have been the time set for the meeting. This letter required -Ereeman to meet Stevenson on the next, day, March 27th, but it Was not replied to by Freeman, who-, had already written to Stevenson, stating that the latter' had not kept the appointment made and suggesting a meeting for the 29th of March. " - .

No reply to this letter was received by Ereeman or by the defendant and on the 30th of March the action was commenced..

We think that the evidence was with the defendant upon the issue as to the performance of the condition requiring an appraisal.

Stevenson was unable to say that he had actually kept to this engagement with Ereeman and, from -the Written statement by the plaintiff’s attorney, it appeared that he had not, yet it was upon the assumed remissness of Ereeman in the matter that an abandonment of the condition was sought to be predicated.

Unless in fault, the insurer was entitled to look for reasonable efforts from the insured toward the accomplishment of thé ap- . praisal (Davenport v. Ins. Co., supra), and in this the plaintiff failed, with the result that the action was open to the defense in question.

It is contended by the respondent that in any event the right to an appraisal was Waived by the defendant, because its answer contained a denial of liability under the policy on the ground of fraud upon the part of the insured, and in support of this proposition the case of Lang v. Eagle F. Ins. Co., 12 App. Div. 45, is cited.

There can be no doubt that the insurer, by giving notice of its total denial of liability under the policy at a time when an appraisal is called for by the terms of that policy, may well be said to have dispensed with the appraisal or arbitration, since there would be nothing left to arbitrate under such circumstances, and this was all that was held in the case cited.

There the insurer had. expressly notified the insured, at or about the date of the loss, that it was liable in no sum whatever under the contract, but in the case at bar the defendant made no such representation and only after the action was brought did it raise this issue of fraud.

Here the question was simple as to the defendant’s right to defend upon the ground of the plaintiff’s failure to arbitrate and, upon the facts which existed at the time when the answer was served, it had that right, nor was the value of this defense to be affected by the pleading of another, although inconsistent, defense. Balmford v. Grand Lodge, 19 Misc. Rep. 1.

Further it is argued that there was a total loss of the property for which the claim was made and that there was, accordingly, no basis for an appraisal, but the proof showed a partial loss of some of the property and the complaint was framed as upon a partial loss. From the evidence it clearly appeared that this was a case to which the arbitration clause of the policy was intended to attach and was so understood by the parties, and, moreover, it may be said that while an appraisal cannot properly extend to goods which' are conceded to have been totally destroyed (Lang v. Eagle F. Ins. Co., supra) the words of the condition in this policy fully cover a case where there is a dispute as to whether or not -there was a total destruction, leaving that fact to be determined by . arbitration,' as, indeed, is was determined in the case cited:

Judgment reversed and new trial ordered, with costs to appellant to abide the event. - - •

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. ' " -  