
    Cornell vs. Le Roy & Rapelye.
    NEW-YORK,
    May, 1832.
    In an action on a policy of insurance, notice of loss, by an assignee of the policy, the policy having been assigned with the assent of the insurer, is a compliance with the condition that all persons insured shall forthwith give notice, &c.
    Where preliminary proofs were made forthwith after a fire, and delivered to the insurer at his request, before copies were taken, and he subsequently, after repeated evasions, finally refused to furnish copies, it was held, that a new set of preliminary proofs furnished nearly four months after the fire, was, under the circumstances of the case, in season.
    Slight proof that the justice granting the certificate, &c. is the most contiguous to the premises insured is prima facie sufficient.
    The certificate of the magistrate that he is not concerned in the loss is sufficient ; proof of the negative fact is not required. If he he interested, it is for the defendant to establish the fact. '
    This was an action on a policy of insurance, tried at the Kings circuit in May, 1830, before the Hon. Ogden Edwards, one of the circuit judges.
    The insurance was on a dwelling house of the plaintiff, situate in Brooklyn. The policy was underwritten by the Alliance British and Foreign Life and Fire Assurance Company. Bum insured @7,500, for one year from 22d July, 1828. The house was burnt 16 January, 1829, and to recover the loss this suit was brought against the defendants’ agents of the company, who, by arrangement, assumed the place of the Company. Eight days previous to the fire, the policy had been assigned by the plaintiff to a Mrs. N. to secure the payment of a mortgage for @5000, which she held on the premises. On the day succeeding the night of the fire, Mrs. N. by her attorney, gave notice to the agents of the insurers that the house was burnt, and that the necessary proofs would be furnished without delay. The attorney of Mrs. N. forthwith prepared the preliminary proofs, which were taken by one of the agents of the insurers, by the permission of the attorney, previous to copies having been taken, and the attorney on the trial could not distinctly state their contents. It appeared, however, that shortly after the proofs had been thus served, the attorney of the plaintiff called on the agent and requested copies ; that he was put off a number of times ; that the agent at length positively refused to give the desired copies, when a new set of preliminary proofs were prepared and served on the 7th of May, 1829. The certificate of loss by the magistrate required by the policy, was given by a justice Lott, who, the witness examined to this point stated, lived nearer the insured premises, as he thought, than another justice named Smith, but he was not certain; he did not know where the other justices of the place resided, nor but what a clergyman or a notary public resided nearer the premises than justice Lott did.
    The defendants objected to thepreliminaryproofs as proceeding from an assignee of a mortgage, and not from the assured, and that it was not shewn that the proofs exhibited by the attorney of the assignee of the mortgage contained a particular account of the loss or damage sustained ; that the papers served in May were not in due season after the loss, and that the evidence offered was not sufficient to establish the fact that the justice who granted the certificate was the magistrate most contiguous to the premises. These objections were overruled, and evidence in chief was given on both sides. The judge delivered a decided charge against the plaintiff’s right to recover, but the jury notwithstanding found a verdict for the plaintiff, for #5000 and interest. The defendants moved for a new trial.
    
      H. Maxwell, for the defendants,
    insisted upon the objections to the preliminary proofs taken at the trial; and further, that it ought to have been proved that the magistrate who granted the certificate was not concerned in the loss, contending that the certificate of the magistrate that he was not concerned in the loss was not enough. The counsel, however, principally relied for the success of his motion, on the ground that the verdict was against evidence,
    
      H. Ketchum, for the plaintiff.
   By the Court,

Sutherland, J.

The objection to the notice and proof delivered by Mr. Robinson, on the 16th January, 1829, the day after the fire, on the ground that they were not piven in the name of the assured, is without foundation, Mr. Robinson acted as the attorney and agent of Mrs. N. who had a mortgage upon the premises consumed, and to whom the policy in question had been assigned as collateral security, with the written consent of the defendants. The 9th condition attached to the policy provides, “ that all persons insured by the company, and sustaining loss, or damage by fire, are forthwith to give notice thereof to the agent a person holding the policy as assignee, with the consent of the insui’er, may well be considered the assured within the meaning of this clause. He is the party in the interest, and no objection is perceived to the preliminary proceedings being conducted in his name. When the suit is commenced, it must be in the name of the party to the contract, as the instrument is not negotiable.

Whether the account of the loss delivered by Mr. Robinson was sufficiently particular, or not, cannot now be determined. He retained no copy of it ; the defendants, although repeatedly applied to, refused to permit the attorney for the plaintiff to take a copy of it. Upon this point, therefore, we have only the presumption arising from the fact, that it was prepared by a professional gentleman of great accuracy and experience, and was believed by him at the time to be sufficient, although at the trial he had no precise recollection of its contents. If notice had been given to the defendants to produce the paper, and they had not, I should be inclined to the opinion, that the circumstances of the case would have warranted the conclusion that it was substantially sufficient; but it is not necessary to rely upon that ground. Mr. Wyckoff testifies that he repeatedly applied to the defendants for a copy of the paper delivered by Mr. Robinson, that they for some time evaded the subject, or put the witness off, but finally refused to deliver or permit copies to be taken. The witness then immediately prepared new papers, by way of preliminary proofs, and served them; to this second set there is no objection, except that they were not served in time. The conduct of the defendants in keeping the plaintiff in suspense in relation to the papers first served, is an ample excuse for the delay. The assured is as soon after the fire as possible to deliver in a particular account of such loss or damage, and this means no more than that it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay—in this case there was none. The notice given by Robinson was served the very day after the fire, and was a good notice, and the specification delivered by WyckofF was delivered as soon as it was ascertained that the defendants would not give a copy of the paper first served. The testimony of WyckofF was prima facie sufficient to shew that the justice by whom the certificate required by the 9th condition was given, was the nearest justice to the premises consumed ; the certificate of the magistrate states that he was not interested in the loss. It cannot be incumbent on "the plaintiff in such a case, to establish by positive proof the negative fact that he was not interested. It is for the defendant to impeach his certificate, by showing his interest, if any interest existed.

This is not a case for the court to interfere with the verdict, as against the weight of evidence; although there are circumstances of suspicion in the case, I cannot say that in my judgment they were sufficient to have justified the jury in finding that the plaintiff set fire to his own house. The verdict certainly is not so clearly against the weight of evidence upon that point as to justify the court in setting it aside. The defendants had the benefit of a strong charge in their favor. The jury, "notwithstanding, thought the plaintiff innocent.

Motion for a new trial denied.  