
    Caroline Rademacher, Resp’t, v. Greenwich Insurance Company of City of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 12, 1894.)
    
    1. Evidence—Opinion.
    Upon the question of the value of household goods, a person who has for a number of years been engaged in housekeeping, and has, from time to time, purchased similar articles, and is familiar with the prices at which they sell, is competent.
    2. Insurance—Arbitration.
    Where plaintiff’s want of good faith in the selection of an umpire, under an arbitration clause in a policy, is not so clear as to justify the court in ruling, as a matter of law, that the plaintiff has violated this condition, it is a question of fact proper to be submitted to the jury.
    
      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Robinson, Bright, Biddle & Ward, (E. Randolph Robinson and Henry Galbraith Ward, of counsel,) forappl’t; Louis Cohen, for resp’t.
   O’Brien, J.

Chapter 488 of the Laws of 1886 provides for a uniform policy of insurance, known as the “ Standard ” policy, and makes its use compulsory upon insurance companies. Such a policy the defendant issued to the plaintiff on wearing apparel and household goods, some of which, it is claimed, were totally, and some partially, damaged by a fire occuring on the 23d day of February, 1891. The policy contained the usual clauses to be found in standard policies Requiring the insured, if a fire occurred, to give immediate notice of any loss, and the further clause providing for an arbitration in the event of disagreement as to the amount of such loss. Upon these clauses, and the fact that the plaintiff claimed $627.66 as her damage, the questions presented upon this appeal turn.

The plaintiff alone testified as to value, and not only her competency, but the question of the weight to be attached to her evidence, is presented by proper exceptions. It was insisted on the trial, as it is upon this appeal, that there was a fraudulent statement of the amount of loss, that it did not exceed $70.53, and that the verdict of the jury was erroneous in awarding $400, as was the ruling in refusing to dismiss the complaint. The evidence, though slight and unsatisfactory upon the question of value, was, we think, sufficient for presentation to the jury. Although not a dealer in the articles injured, it nevertheless appeared that the plaintiff for a number of years had been engaged in housekeeping, and had from time to time purchased similar 'articles, and was familiar with the prices at which they sold. This property consisted of wearing apparel and household goods, and an expression of her opinion as to their value, coupled with the basis upon which such opinion was predicated, showing that she took the cost of such property, and deducted for depreciation 25 per cent., was some, and we think, competent, evidence upon the question of value. On the part of the defendant the experts testified that the property partially damaged was not worth more than $140, and that the damage thereto was but $70; and these experts expressed the belief that this was the extent of the injury to plaintiff, for the reason that they did not think, from the character of the fire and the appearance of the property in the house where the fire occured, that any property was totally destroyed. The value of property destroyed, the plaintiff had placed at over $200 ; and the questions were before the jury whether any property had in point of fact been destroyed, and, if so, how much, which, together with the partial damage sustained, would be the amount the plaintiff was entitled to recover. Whatever our personal views as to the credibility to be attached to the different versions, we think that where, as here, there was not that clear preponderance in favor of the defendant which would have justified a direction in its favor, the verdict of the jury thereon is conclusive, as it is upon the cognate question of overvalution.

In addition to -the question of the extent of the loss, the defendant, at the close of plaintiff’s testimony, and again at the close of the defendant’s testimony, moved to dismiss upon the following grounds: (1) That it is a condition precedent of the plaintiff's right to recover under the policy that her loss should be ascertained by appraisal, and, in cáse the appraisers disagree, by the decision of an umpire; (2) that the policy provides that proofs of loss should be furnished within 60 days of the fire, and the plaintiff has shown that they were not served until the expiration of 90 days. Upon the law there can be no doubt that the furnishing of proofs of loss, and, in the event of a disagreement, the undertaking, in good faith, to have an appraisal of the property, are conditions precedent to a right to recover, and a breach thereof, unless waived, constitutes a defense. Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 357; 45 St. Rep. 200. The difficulty to be found in the questions presented upon this appeal is not in the law, which we regard as settled, but in its application to the facts here appearing. In determining, therefore, the strength of these objections, the testimony relating thereto must be referred to. Immediately after the fire the defendant was duly notified, and sent a person to examine the premises, and, although it is not apparent just how it arose, the parties disagreed as to the extent of tlie loss. The policy required that, in the event of such a disagreement, the loss should be determined by appraisal, each party selecting one appraiser, and, in case such appraisers disagreed, by the decision of an umpire. The agreement of arbitration, signed by both parties, bears date the 2d day of April. These appraisers could not agree, and undertook to select an umpire, the defendant’s appraiser selecting four names, which were forwarded to plaintiff’s appraiser, and upon which the latter did not act until he bad received a letter from defendant’s appraiser calling attention to the names submitted, and requesting an 'answer, which was sent on the 13th of April by the plaintiff’s appraiser, who, without objecting in his letter to the names submitted by defendant, proposed three other names. To this the defendant’s appraiser responded, stating that he had made an examination of the standing of the parties submitted to act as umpire, and that he could not accept any of them, because he had ascertained that they were not furniture dealers, or in any way competent to act in a loss of the kind, and that he would like to hear from the plaintiff’s appraiser as to whether he accepted or declined the parties offered by him. In addition, the plaintiff’s appraiser testified that he had suggested the names of furniture men, naming one firm, and' that he was unable to agree with the other side upon an umpire. The motion to dismiss upon this branch was necessarily placed upon the ground that upon this showing by plaintiff the court was bound, as a matter of law, to hold that the plaintiff had not complied with this condition of the policy in obtaining an appraisal.

In Uhrig v. Williamsburg City Fire Ins. Co., 101 N. Y. 365, it was said:

“ Under the arbitration clause it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy; and if either party acted in bad faith, so as to defeat the real object of the clause, it absolved the other party from compliance therewith, and if either party refused to go' on with the arbitration, or to complete it, or to procure the appointment of an umpire, so that there could be an agreement upon an appraisal, the other party was absolved. The claimant under such a policy cannot be tied up forever, without his fault and against his will, by an ineffectual arbitration.”

And, as further said in the opinion in that case:

“ Upon all the evidence, it was a question of fact for the jury to determine whether there was any breach of this clause in the policy.”

So, here, we think it was, upon the evidence, a question of fact proper to be submitted to the jury, because plaintiff’s want of good faith was not so clear as to have justified the court in ruling, as a matter of law, that the plaintiff had violated this condition. Had the defendant requested to go to the jury upon this question, it would undoubtedly have been entitled to do so, as, upon all the evidence, a question of fact was fairly presented whether or not the plaintiff had acted in entire good faith in endeavoring to' select, after the appraisers had disagreed, a disinterested and impartial umpire. Such request, however, was not made by defendant, relying, as it did, upon the right to have the question disposed of as a matter of law ; and, with this position taken by the defendant, we do not think the ruling of the trial judge was wrong.

The other ground of the motion to dismiss, namely, the failure to present proofs of loss in time, is the most serious question in the case. It is conceded that the fire occurred in February, that proofs were not furnished until May, and that the policy required that they should be furnished within 60 days after the fire. Upon the law, therefore, unless the evidence shows that this condition has been expressly or impliedly waived, it would bar the plaintiff’s recovery. The question of what will constitute a waiver has been frequently discussed. In Koller v. Insurance Co., it was said :

“While a waiver of a condition of forfeiture need not be based upon a technical estoppel, yet, in the absence of an express waiver, some of the elements of an estoppel must exist,—the insured must have been mislead by some action of the company which caused the omission to comply with the condition, or it must have done something, after knowledge of a breach of the condition, which could only be done by virtue of the policy. Armstrong v. Agricultural Insurance Co., 130 N. Y. 560 ; 42 St. Rep. 555 ; Ronald v. Mutual Reserve F. L. Association, 132 N. Y. 378; 44 St. Rep. 407. Forfeitures plainly incurred, and not waived, must be enforced by the courts. Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 356; 45 St. Rep. 200.. * * * Mere silence at a time when it was not required to speak is not a waiver, nor evidence from which waiver may be inferred, (Armstrong v. Agricultural Insurance Co., supra ;) so that the mere retention of proofs served after the time limited for their service is not performance of the condition precedent.”

The facts relied upon in this case to show waiver are the receipt of the proofs of loss without objection, and retaining the same, and the entering into the agreement of arbitration before the time had expired within which the proofs of loss should have been furnished. In Brink v. Hanover F. Insurance Co., 80 N. Y. 113, it was said:

“If a company intends to avail itself of the technical objection that the proofs are not filed in time, common fairness requires that it should refuse to receive them on that ground, or at least promptly notify the assured of their determination; otherwise, the objection should be regarded as waived.”

And, though the question has not been directly passed upon in this state, an argument in support of the proposition that the entering into an arbitration before notice or proofs of loss have been served is a waiver of notice or proofs of loss, notwithstanding a stipulation in such submission that it shall not operate as such waiver, is furnished by the case of Gale v. Insurance Co., 33 Mo. App. 664. The answer of the defendant does not affirmatively allege a forfeiture for failure to file proofs of loss; such answer admitting that they were received at the date fixed in the complaint, which was subsequent to the 60 days, but denying that the plaintiff has complied with the conditions of the policy. Although we think that the question as to waiver by implication is close, yet, in view of the issues, and the way in which this question was presented, we think that the trial judge was not obliged to dismiss the complaint; and, upon the same motion being made at the close of the case, the additional reason was then furnished by the circumstance appearing that after the appraisers had failed to agree, but within the time limited for filing proofs ■of loss, the defendant sent three appraisers, who made out a detailed statement of the loss, after fully interrogating the plaintiff upon the extent of her claim. Our conclnsion, therefore, is that the judgment is right, and should be affirmed, with costs.

All concur.  