
    FORWARD v. CONTINENTAL INS. CO.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1893.)
    Insurance—Waiver of Conditions in Policy. The knowledge by the agent of the existence of an invalid chattel mortgage-on goods insured, communicated to him before the time of issuing a fire policy, anti inconsistent with conditions therein, is the knowledge of the compainy-issuing it. and is a waiver of such conditions; it being assumed, if otherwise, that the insured would not have accepted the policy. Berry v. Insurance Co., 30 N. E. Rep. 254, 132 N. Y. 49, and Cross v. Insurance Co., 30 N. E. Rep. 390, 132 N. Y. 133, followed. Quinlan v. Insurance Co., 31 N, E. Rep. 31, 133 N. Y. 356, and Messelhack v. Norman, 26 N. E. Rep. 34, 122 N. Y. 578, distinguished.
    Exceptions from circuit court, Genesee county.
    Action by John D. Forward against the Continental Insurance Company. Motion by defendant for a new trial on exceptions taken at atrial at circuit, at which a verdict was rendered for plaintiff for $1,950-on a policy of fire insurance issued by defendant to plaintiff in the sum. of $2,300. Motion denied.
    
      Argued before DWIGHT, P. J. j and MACOMBER and LEWIS, JJ.
    Sanford E. North, for plaintiff.
    Myron H. Peck, Jr., for defendant.
   MACOMBER, J.

The defendant issued a policy of fire insurance to the plaintiff on the 23d day of April, 1891, in the sum of $2,300, covering his store, stock, and fixtures in the town of Alabama, N. Y. As the result of a fire which occurred September 27,1891, the loss sustained by the plaintiff was ascertained by the agent of the defendant to be the sum of $1,950. Subsequently, the defendant refused to pay the amount of the loss, claiming that there had been a forfeiture of the policy, upon the ground that, contrary to the plaintiff’s statement contained in the application, the plaintiff had, about two months before the policy was issued, given a bill of sale to his brother on the stock of goods and fixtures covered by the policy. Under proper evidence laid before them, the jury found that this bill of sale, though executed and filed, did not have any valid existence, even as between the parties thereto, and, further, that, at the time of the negotiation for the policy, and the agreement between the plaintiff and the defendant’s agent, the latter was expressly informed of its existence, and how it came to be given, and upon such facts the agent, being of the opinion that it had no valid, subsisting existence, issued the policy. This policy is the one known as the “Standard Fire Insurance Policy of the State of New York,” prepared by the superintendent of insurance in pursuance of chapter 488 of the Laws of 1886. It contained, among other things, the following provisions:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional, sole ownership, * - * or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. * - * In any matter relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this company. * * - This policy is made and1 accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement, indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or other rep resentative of this company shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto. Nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured unless so written or attached. ”

The question is not whether the plaintiff can avail himself of an unauthorized waiver by the defendant’s agent of any provision contained in the policy. It is, rather, whether the knowledge of the existence of the chattel mortgage, brought home to the company in this manner,, through its agent, who procured the policy, effects a waiver of any ground set up for avoiding liability. Two recent cases in the court of appeals seem to have settled this question in favor of the contention made in behalf of the plaintiff, namely, Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. Rep. 254; Cross v. Insurance Co., 132 N. Y. 133, 30 N. E. Rep. 390. In the case of Berry v. Insurance Co. the agreement provided that the policy should be void if, without notice to the company,. and permission therefor, in writing, indorsed thereon, the interest of the insured be less than the entire, unconditional, and sole ownership of the property insured. It also contained a prohibition against the power of an agent to waive any condition of the policy, together with the following:

“No notice to and no'consent of or agreement by any agent of this company shall be binding on this company until such notice, consent, or agreement, as the case may be, is clearly expressed and indorsed in writing hereon, signed by such agent. ”

Liability in that case was sought to be avoided by the company on the ground that the insured did not own the property covered by the policy, but was in possession of it only under a verbal agreement with his son, the true owner, to occupy the same during life, with an obligation on the part of the life tenant to keep the building insured. The defendant’s agents had knowledge of this fact when they issued the policy, and a recovery was sustained by the court upon the ground that the knowledge of the agent, obtained at the time of allowing the policy, was the knowledge of the company itself. The case of Cross v. Insurance Co., supra, arose upon allegation and proof that the building insured was unoccupied at the time of the issuance of the policy, contrary to the terms of the policy. But it being shown that the agent was aware of this fact at the time of the application, and at the time the policy was issued, a recovery was Jiad, notwithstanding the fact that the policy provided that the agent did not have power to waive any condition. In both of these cases, it is true, the agent was the general agent of the insurance company. But this circumstance can make no difference, because the ground upon which liability of the company is sustained is that the knowledge which was imparted to the agent at the time of the application, and at the time that the policy was issued, was necessarily the knowledge of the corporation itself. See, also, Van Schoick v. Insurance Co., 68 N. Y. 434; Woodruff v. Insurance Co., 83 N. Y. 134; Wood, Ins. § 88, and cases there cited. The principal case relied upon by the learned counsel for the defendant is that of Quinlan v. Insurance Co. 133 N. Y. 356, 31 N. E. Rep. 31. This, however, was a case of a violation of a provision by the insured occurring subsequently to the issuing of the policy. The policy contained a clause to the effect that the beginning of a foreclosure proceeding invalidated the policy, unless saved by agreement properly indorsed upon the policy. In that case a mortgage which was sought to be foreclosed was not given until after the policy had been written, and the foreclosure was not begun until nearly two years afterwards, and the agent upon whose alleged knowledge the ■claim of waiver was made had ceased to be the company’s agent before the beginning of the foreclosure proceedings. So also of the case of Messelback v. Norman, 122 N. Y. 578, 26 N. E. Rep. 34. The waiver there relied upon was not made at the time of the application for, and the issuing of, the policy, but afterwards. The policy bore date June 9, 1883. The defense arose upon the provision of the policy against liability if the buildings became vacant. The building insured was occupied until April 17, 1884, and was destroyed on the 26th day of that month. The waiver relied upon was one made by the agent April 17th. These cases do not affect the general principle, as we understand it to exist, which is, that the knowledge by the agent of a fact communicated at or before the time of the issuing of the policy of fire insurance, inconsistent with the condition of the policy itself, is to be imputed to the company issuing the policy; for otherwise, ;t must be assumed, the insured would not have accepted such policy. It follows that the defendant’s motion for a new trial should be denied.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict. All concur.  