
    *Norton & Agan against The Rensselaer and Saratoga Insurance Company.
    ALBANY,
    Oct. 1827.
    What shall be sufficient preliminary proof of loss,~ within the posal or dition attached to a valued policy of rance on goods against fire, requiring the assured to liver in as ticular an count of the loss or damage, amount as the na- ture of the case will admit of and make proof thereof by their oath or affirmation, and by their books of ac- count and other vouch- ers, as shall reasonably be required. Where aB. the papers fur-
    nisbing details were con- sumed with the goods, 1ie~d, that a state- merit of the gross amount ALBANY, Oct. 182~. Norton v. lost, with the circumstances of the loss, were sufficient.
    Form of the notice and affidavit in such case, approved by the court as sufficient.
    ASSUMPSli~ on a valued policy of insurance against fire, on merchandize of the plaintiffs, as D. 0. Norton & Oo., tried at the Rensselaer circuit, November 16th, 1826, before DUER, 0. Judge; when the following facts were in evidence:
    The 10th condition or proposal of insurance annexed to the policy, was, that "all persons insured, &o., sustaining a~y loss or damage by fire, are forthwith to give notice to the corn any, and, as soon after as possible, to deliver in as particu~r an account of their loss or damage, signed with~ their own hands, as the nature of the case will admit of and make proof of the same by their oath or affirmation, and by their books of account and other vouchers, as shall be reasonably required." By the policy, the cornpany were to pay loss or damage within ~iO days "after notice and proof thereof made by the assured, in conformity to the proposa's of this corporation annexed to this policy."
    - The policy in question was dated October 4th, 1825; and the merchaudize insured was destroyed by fire on the 28th day of February, 1826.
    The plaintiffs read in evidèncè a notice, admitted by the defendants to have been received by. them, on the 2d of March, 182G, in the words and figures following, viz.:
    
      “ The Rensselaer and Saratoga Insurance Company, having insured property of D. 0. Horton & Co., to the amount of two thousand dollars, by a policy signed the 24th day of October, 1825, notice is, therefore, hereby given to said insurance company, that the insured sustained a loss by fire on the property insured, on the morning of the 28th day of February, 1826, to the amount of at least five thousand dollars. The following is all the account the insured have it in their power to give of the accident and loss, viz.: David C. Horton, one of the firm insured, *closed the store a few minutes after nine o’clock on Monday evening, the 27th February last past, leaving in the store, besides the goo^s insured, all the books of account, the notes, excepting one or two' which were in his pocket book, the bills of goods, the cash book, and also about two hundred dollars in money, which was intended to be used to pay up a bank note coming due on or about the 1st March, 1826. At this time every thing appeared perfectly safe in the store. Helson Agan, one of the firm, was absent in the country, leaving in the store all his clothing, and which was burnt. The insured cannot say, nor can they conjecture how or where the fire originated. The store containing the goods insured, was burnt, and all the goods therein, papers, books, &c., as above stated, were entirely destroyed,' except a remnant sold for twenty dollars. The fire was discovered about one o’clock at night, at which time the insured, Hor ton, was at his father-in-law’s with his wife, a distance of about half a mile from the store. Agan, as above stated, was in the country, and no one was sleeping in the store. Something like a week before the fire, the insured were looking over their bills of goods bought, their cash book, and also their book of accounts, and ascertained that they had then on hand goods to the value of rising of five thousand dollars. This amount had not been much reduced by sales previous to the fire. Given under our hands at Lansing-burgh, first day of March, 1826.
    David C. Horton.
    Helson Agan.”
    
      
      “Rensselaer county, ss: David 0. Norton and Nelson Agan, being duly sworn, say, and first the said David 0. saith, that the statement of facts and circumstances within contained, respecting the fire and loss within mentioned, are true. And the said Nelson Agan saith that the facts and circumstances as aforesaid, so far as they relate to his own knowledge are true, and so far as the same are derived from the knowlege and information of others, this deponent believes to be true.
    David 0. Norton.
    Nelson Agan.”
    Sworn before me this first day of March, 1826,-, one of the judges of the Eensselaer county court.
    *The counsel for the defendants insisted that this notice was insufficient, and not a compliance with the tenth condition of insurance. The judge declared his opinion, that the notice was not a compliance with that condition. The counsel for the plaintiffs then read in evidence a notice admitted by the defendants to have been received on the 11th of April, 1826, in the words and figures following, viz.:
    “ Black, blue, mixed, olive and drab broadcloths, $800
    Cassimeres, 115
    Lion skins, 25
    Domestic cloths,” &c., [setting forth in this form a long bill of particulars.] “ Sum total $5204.”
    
      Rensselaer county, ss: David O. Norton, one of the firm of Norton & Agan, being duly sworn, saith, that in pursuance of a request from the Eensselaer and Saratoga Insurance Company, to furnish them with a statement of the goods lost by fire, in addition to the statement heretofore made to said company, on the 2d day of March, 1826, he has made the annexed statement. That the same is made from recollection, without having papers to refer to, but is, in all respects, correct, according to the recollection and belief of this deponent; and further saith not.
    David G. Norton.”
    Sworn before me this 11th day of April, 1826,--, one of the judges of the Eensselaer county court.
    
      It appeared by the record that this suit was commenced on the 10th day of May, 1826 ; whereupon the counsel for the defendants insisted that, inasmuch as 60 days had not elapsed, after the notice of the 11th of April was given, before this suit was commenced, according to the terms " and conditions of the policy, no right of action had accrued at the time the suit was commenced. And the counsel, therefore, requested the judge to non-suit the plaintiffs. The plaintiffs’ counsel contended that the notice of the 11th of April related back to the notice of the 2d of March; and was a sufficient compliance with the terms and conditions of the policy; that, therefore, the right of action had accrued on the 10th day of May. The judge sustained the objection : and non-suited the plaintiffs.
    
      *H. P. Hunt, for the plaintiffs,
    now moved to set aside the non-suit, and for a new trial. He said the notice of the 2d of March was sufficient. The plaintiffs swear that all their books, vouchers, &c., were consumed with their goods. Yet the court is now called upon to say that, in absence of all. papers and documents, the plaintiffs should have given a bill of parcels.
    We say this preliminary proof is to be viewed liberally; and with good reason: for the company, after having received it, may still refuse payment. (Haff v. The Marine Ins. Co., 4 John. 131.) In the case cited, Thompson,' J., gays, “ The plaintiff should, at least, disclose all the documentary evidence in his possession.” In this case, the plaintiffs’ documentary evidence was all lost. The clause in question should be construed to require only the best evidence of the fact the party possesses at the time. (Barker v. The Phœnix Ins. Co., 8 John. 318.) A bill of parcels would be of no use. The plaintiffs, if dishonest, might swell it to what amount they pleased, without much fear of detection. A full and perfect account of the circumstances attending the loss, how the fire originated, if known, where the plaintiffs were, what they had been about, &c., serve to put the party on inquiry; and may be contradicted. The last estimate, on the requisition of the company, could be no more than a random one from loose recollection.
    Besides; it is fairly to be intended that the defendants made no objection to the sufficiency of the original notice. This they were bound to do at the time. (9 John. 192; 6 Cowen, 404, 415.)
    
      D. Buel, jun. contra.
    The notice of the 2d of March did not give “ an account,” within the intent and construction of the 10th condition. The word does not mean a narrative of the occurrences attending the fire, or the manner in which the loss happened. It means a specification or inventory of the loss. This is evident from the provision, that it is to be substantiated not only by their oath, but their books of account and other vouchers. The object "-is to secure the company against imposition ; and enable them to detect frauds. If a gross amount be sufficient, the condition would have no beneficial operation. The plaintiffs had power to do more. They state in their notice that they had examined their bills of goods, and ascertained the amount, about a week before the fire; and on the 11th they furnished an inventory.
    The printed proposals are a part of the policy, and the accounts of loss certified and proof required, are a condition precedent, and must be strictly complied with. Marsh. on Ins. 707, Am. ed. 1805; 6 T. R. 710, 722.
   Curia, per Savage, Ch. J.

The only question is, whether the notice of the 2d of March was a compliance with the 10th proposal in the policy. That proposal is brought over from the English policies, where it is held to be a condition precedent; and the clause connected with it, which relates to the certificate of third persons, has been the subject of several decisions confining the plaintiff with great strictness to the persons named. (2 Condy’s Marsh. 808, 813, and the cases there cited.) I am not aware of any case which goes into the form of the notice, and the affidavit of the party. Undoubtedly these must be furnished, according to the policy, a certain-number of days before an action can be brought; but it is another question what - they should contain. The clause requiring proof of loss in marine policies, has been construed with considerable liberality. The court have looked to circumstances; and required no more information of the party than what appeared to be within his control. In Lawrence v. The Ocean Ins. Co., (11 John. 260,) Thompson, J., in delivering the opinion of the court, says the clause “ requires only reasonable information to be given to the underwriters; so that they can be enabled to form some estimate of their rights and duties, before they are obliged to pay. This clause has always been liberally expounded; and is construed to require only the best evidence of the fact which the party possesses at the time. Such has been the uniform construction put upon it by this ‘“court. 2 John. Rep. 136; 8 John Rep. 317.” The clause itself in the policy before us, expressly contemplates the latitude arising from circumstances. The account of the loss or damage is to be as particular as the nature of the case will admit of; and we think, after the total destruction of those papers which alone could furnish accurate details, the notice of the 2d of March was sufficient.

The non-suit must, therefore, be set aside, and a new trial granted.

Eule accordingly. 
      
       If the insurer puts his refusal to pay upon other grounds, his objection to the absence or imperfection of preliminary proofs will he considered waived. (McMasters v. The West Chester Mutual Ins. Co., 25 Wen. 379; Ætna Fire Ins. Co. v. Tyler, 16 Wen. 385.
      Preliminary proofs were made forthwith after a fire, and delivered to the assurer at his request before copies were taken, and he subsequently, after repeated evasions, finally refused to furnish copies; held, that a new set of preliminary proofs furnished nearly four months after the fire, was, under the circumstances of the case, in season. Cornell v. Le Roy, 9 Wen. 163.
      See also McLaughlin v. Washington Co. Mutual Ins. Company, 23 Wend. 525; Lawrence v. Ocean Ins. Co., 11 John. Rep. 260; 8 John. Rep. 311.
     