
    Evah Brothers, Resp’ts, v. The California Insurance Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 20, 1888.)
    
    
      1. Insurance (fire)—Knowledge of agents—Effect of on conditions JN'POLICY.
    . The policy contained the following clause: “If the building insured stands on leased ground and is not so represented to the company and so expressed in the written part of- the policy, then and in such case this policy shall be void.” Held, that notwithstanding this clause, if the defendant’s agents possessed the knowledge at the time the insurance was effected that the building was located upon leased ground, that the defendant would be concluded by such knowledge, although such fact was not stated in the policy.
    3. Same—Evidence—Sufficiency of to submit to jury.
    Where two agents of the company testified that before the policy was issued they had “ general knowledge ” that the building insured stood upon leased ground, although they had no particular knowledge thereof, it is sufficient to submit to the jury on the question of their knowledge, as there was no pretense of intentional misrepresentation.
    8. Same—Notice of loss—Effect of failure to serve.
    The omission of the insured to serve notice of loss promptly, where the company’s agents reside near the property, and they prepare and forward the proofs which are retained by Che company’s agents without objection, will not defeat a recovery.
    Appeal from a judgment entered in favor of the plaintiffs, after a trial at the circuit. Also from an order denying the defendant’s motion for a new trial.
    
      George B. Wellington, for app’lt; Lamott W. Rhodes, for resp’ts.
   Ingalls, J.

This action was brought by the plaintiffs to recover upon a policy of insurance, by which the defendant insured the plaintiffs in the sum of $500, upon an ice house which was destroyed by fire. Proofs of loss were furnished by the plaintiffs to the defendant, within the time required by the terms of the policy, and the same were, without objection, retained by the latter. The only material question involved in this appeal seems to be, whether Messrs. Neher & Carpenter, who negotiated such insurance as the agents of the defendant, and in his behalf, were informed, previous to the making of such contract, that the building thus insured was located upon leased land.

The policy contains the following provision: '‘If the building insured stands on leased ground, and is not so represented to the company,, and so expressed in the written part of the policy, then, and in such case, this policy shall be void.’’

The learned justice at the circuit submitted such question to the jury by a charge clear and impartial, upon the merits, and instructed them correctly in regard to the question of law involved. The jury rendered a verdict in favor of the plaintiffs, which the court refused to set aside, although a motion was made by the counsel for the defendant for a new trial upon the minutes, and judgment was entered upon such verdict in favor of the plaintiffs against the defendant.

We cannot doubt the soundness of the legal proposition, that if the defendant’s agents, Neher & Carpenter, possessed the knowledge, at the time the insurance was effected, that the building was located upon leased ground,, that the defendant would be concluded by such knowledge, although such fact was not stated in the policy. The knowledge of the agents became, in legal effect, the knowledge of the defendant, and operated as a waiver of the condition contained in the policy, which condition is stated above. Van Schoick v. The Niagara Fire Insurance Co., 68 N. Y., 434; Bennett v. Buchan, 76 id., 386, Bennett v. Agricultural Insurance Company of Watertown, 106 N. Y., 243; 8 N. Y. State Rep., 693.

It seems unimportant how, where or when such knowledge of the agent was acquired, if he possessed such knowledge at the time the premium was paid, and the policy was issued. Couch v. R. G. Ins. Co., 25 Hun, 469.

The evidence by which the plaintiffs sought at the trial to establish knowledge to such agents of the fact that the building insured was located upon leased ground, was not of that conclusive character, which could be desired, yet we think it was sufficient to justify the submission of the case to the jury, for their determination, and to sustain the verdict rendered by them. We have examined the case with care, and have reached the conclusion that the facts are not such as to call for the granting of a new trial upon the merits. Cheney v. The N. Y. C. and H. R. R. R. Co., 16 Hun, 415, 420; Morss v. Sherrill, 63 Barb., 21; Rounds v. D., L. and W. R. R. Co., 64 N. Y., 138; Payne v. The Troy and Boston Railroad Company, 83 N. Y., 572, 574.

The witness Philip H. Neher, who was one of the defendant’s agents in making the contract of insurance, testified as follows:

Q. Did you know that this block of ice houses of which this house formed one stood upon Tibbets’ ground? A. I couldn’t swear to a positive knowledge, never having known or seen the lease; but only from general talk.
Q. Was the talk with the assured? A. I can’t remember any distinct talk with the assured about it; it was quite well known to the public generally.

Upon cross-examination by defendant’s counsel as appears upon page 22 of case, this witness testified as follows:

Q. The court seems to think that there is some discrepancy between your testimony upon the direct and cross-examination, or that there was a question about it, but I would like to ask you for the instruction of the court and jury, whether at the time this policy was issued you had any knowledge that this ice house covered by this particular policy stood upon leased land? A. I don’t know that I had any particular knowledge of this particular ice house; my knowledge is general in regard to the Tibbits’ property there.
Q. That is that there was a large amount of land on Green Island owned by the Tibbits? A. Yes, sir.
Q. And you knew this was a village lot, didn’t you? A. I couldn’t say.
Q. Did you know that this particular lot covered by this particular building stood upon leased land? A. No more than I knew the others; in a general way is the only way I might know it, because I never saw the Tibbits’ lease.
Q. Did any one ever tell you that this particular ice house stood upon leased land? A. I don’t know if they did.
Q. No one ever informed you? A. Not that I remember of.
Q. Did you have any knowledge of the fact? A. Not unless this general knowledge that I did have that this Tibbits’ property was leased property; it is not specific knowledge; I will confess I have no specific knowledge, if that is the question; I have no specific knowledge that there is any of this property leased, and yet I have general knowledge.
Q. What do you mean by that? A. Here is business, come into the office, and we say here is one of the Tibbits’ leases; we understand generally that he had a great many leases, and had a good deal of property there and this was. of that property.
• James H. Carpenter, a member of the firm of Neher & Carpenter, the defendant's agents, was produced and examined as a witness on the part of the plaintiffs, and after stating his relation to said firm, and their appointment as the agents of the defendant, he further testifies as follows: Mr. Brothers had insurance with our firm on this ice house prior to the policy in suit in the First National Fire Insurance Company,, of Worcester, Mass.; we represent the company; I was over to Green Island and saw the ice houses; I think they were all there that were there at the time of the fire, when I saw them, which, I believe, were five.
Q. Prior to the time that this policy was issued, did you know that this land belonged to Mr. Tibbits ? (Objected to, that under the complaint in this action it is not competent for the plaintiffs to prove a waiver, and additionally that no particular time prior to the issuing of the policy is covered by the question. Objection overruled. Defendant excepts.) A. I can answer the question only in this way : I had a general knowledge that this building stood on leased land, and not any specific knowledge as to this particular lot. (Defendant moves to strike out the witness’ general knowledge.)
By the Court.—Did your knowledge embrace this particular lot, as you understood it ? A. Yes, sir.

'Upon cross-examination the witness stated:

Q. When this policy in suit was issued, did you know that this particular ice house, which was covered by this policy in suit, stood upon leased ground ? A. I don’t know that I can answer it better than I have already.
Q. Did you know that the ice house stood upon leased ground ? A. From general knowledge, I did. (Defendant moves to strike out the answer as not responsive, and the court directed the witness to confine himself to the direct answer.)
The Witness.—I don’t think I can answer any better than I did when Mr. Rhodes asked me. I would use the same language in answering it. In connection with all the facts, I do not think either yes or no would be a proper answer.

The case shows that there was, at the trial, a severe struggle on the part of the counsel, respectively, upon this branch of the cause, and the witnesses were very hard pressed. It is not pretended that the plaintiffs intentionally concealed the fact that the building was located upon leased ground, or that they did anything which was calculated to mislead the agents of the defendant in regard thereto. The parties seem to have acted in entire good faith when the insurance was effected. The knowledge which the agents possessed at the time the plaintiffs applied for such insurance was sufficient, at least to put them upon inquiry in regard to such title, if they entertained any ■doubts upon the subject, which they probably did not at the time.

We do not think the omission to serve promptly upon the defendant, notice of the loss, should be regarded under the circumstances, sufficient to defeat the plaintiff’s right to recover in this action. It áppears that the proofs of loss were prepared by the agents, of the defendant, and went to the Phoenix Agency, and were received, and retained without objection, until the trial, when they were produced by the defendant upon the call of the plaintiffs. It further appears that Neher and Carpenter, resided at the time the fire occurred in the city of Troy, just across the Hudson river, from where the building was situated, and were doubtless fully informed in regard to its destruction. Hermann v. The Niagara Insurance Company, 100 N. Y., 412; O’Reilly v. The Corporation of the London Assurance, 19 N. Y. Week. Dig., 147.

We have examined all of the exceptions taken by the defendants upon the trial, and discover no error which calls for a reversal of the judgment. It seems quite evident that substantial justice has been attained, and the judgment should be affirmed with costs.

Learned, P. J., and Landon, J., concur.  