
    Egbert D. Slocum, Respondent, v. The Saratoga and Washington Fire Insurance Company of Saratoga and Washington Counties, Appellant.
    Second Department,
    March 15, 1912.
    Insurance — action on standard fire insurance policy — notice to company condition precedent — evidence — provision of policy as to notice to company construed—omission of venue from proof of loss.
    In an action to recover for loss under a standard fire insurance policy a compliance with a provision of the policy requiring the insured to give immediate .notice to the company of any loss, and “within sixty days after the fire ” to render a statement to the company as to the time and origin of the fire, etc., is a condition precedent to the maintenance of the action.
    Evidence in such an action examined, and held, not to justify the jury in finding a sufficient compliance with the terms of the policy as to service of statement of time and origin of fire.
    The phrase “within sixty days after the fire” as used in such a notice means within sixty days after the fire has terminated or abated to such an extent that an inspection of the damaged property may be had.
    The omission of the venue from a proof of loss, sworn to before a commissioner of deeds, may be supplied by amendment.
    Hirschberg, J., dissented.
    Appeal by the defendant, The Saratoga and Washington Fire Insurance Company of Saratoga and Washington Counties, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 13th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      William Rooney, for the appellant.
    
      James E. Carroll, for the respondent.
   Jenks, P. J.:

The action is brought upon a fire insurance policy of the standard form, the plaintiff gained a verdict at Trial Term and the defendant appeals. One of the defenses pleaded is that the plaintiff did not comply with a provision of the policy: “If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, * * * and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating tho knowledge and belief of the insured as to the time and origin of the fire,” etc.

A compliance herewith was a condition precedent to the maintenance of the action. (Peabody v. Satterlee, 166 N. Y. 174.) I think that the evidence did not justify the jury in finding such compliance and that, therefore, there should be a new trial. “ Within sixty days after the fire ” means “ within sixty days after the fire has terminated or abated to such an extent that an inspection of the property damaged may be had.” (National Wall Paper Co. v. A. M. M. Fire Ins. Co., 175 N. Y. 226.) Explanatory of this interpretation, the court say, per Haight, J.: “Until the fire abates, or is ended, his \i. e., the insured] access to the premises may be impossible, and in consequence he may be unable to learn the precise extent of his loss.” The policy, termed the farm policy form, insured in divers sums a two-story shingle roof frame building, while occupied as a dwelling house, three barns and certain farm produce, feed and cattle, all situate on a farm in the town of Dover. The loss as reported by the plaintiff consisted of 100 bushels of oats, 1Y tons of hay, 2 tons of rye straw, feed, and granary, hen and hog house, dwelling and barn, all totally destroyed, and barn Ho. 1 slightly damaged. The structures were of frame save there were metal or tin roofs upon them or some of them, and were situate in comparatively open country. I shall consider first the evidence as to what time after the fire the insured could have determined by inspection the precise extent of his loss. The plaintiff testifies on direct examination that the fire began about Y p. M. on Friday, July 15, 1910, and that “we had a fire there burning four or five days after the original fire.” Upon cross-examination he testifies that when the fire broke out he was a mile away, but went to the scene in a motor car; that when he reached there about half the building was burned; that he stayed there all night; that he could not tell how long it was after he went there that the roof fell in; that he helped protect barn No. 1; that there was-no water put on the building or the lean-tos, so far as he knew; that by midnight the building was all down — it had fallen; “the whole thing had gone down into a bunch of flames, a bunch of fire, right into the cellar,” and that he went home about 6 or 7 A. M. of the next day. He was then asked: “Q. You knew at that time, did you not, that the house was a total loss ? A. At the time I left, sure. Q. You could see that from looking at it ? A. Oh, yes, yes.”. He further testifies that the hay and grain were on fire the evening of the 15th, that he saw them burning there and that he could not make any attempt to put it out—he could not get to it. “ Q. You knew on the 16th that the hay would be a total loss, you did not expect to save it at all, the day after the fire ? A. No, sir. Q. You knew that was a total loss? A. Yes, sir. Q. You could see that ? A. Yes, sir. Q. Also the oats ? A. The biggest part of them, of course as I told you we culled out a few bags, I think a week or two after * * *. Q. So that on the 16th day of July, 1910, you knew that you had suffered a total loss, did you not ? Á. I did, yes, sir.”

The plaintiff’s witness Hasbrouck on the direct examination testifies that the fire began on the evening of July 15, 1910; that he did not recall whether the building and contents were burning subsequent to that date; that on the next Sunday a large piece of oats was beginning to “go up,” as there was a little win'd coming up; that it was coming up in a blaze; that it was burning about a week before they got it “ all cleaned up ” and the fire put out entirely; it was chiefly the oats and the planking under the floor; there was refuse that was burning in there that could not be reached, and “ they got the whole thing torn'up.” He put his hose on it Sunday. The fire broke out again during the following week; the fire was not put out until the latter part of the next week. On cross-examination he testifies that the roof fell in about one hour or an hour and a half after the fire began. He was asked: “Q. It was apparent, was it not, that the building was totally destroyed on the morning of the 16th of July, you could see that ? A. Well, no, you mean the timbers and everything burned up ? Q. No, the building had lost its semblance as a residence ? A. Sure. Q. All that was left was some blackened timbers in the basement ? A. It was burning yet. Q. Just smouldering and smoking ? A. The heavy timbers and those things had not all burned up. Q. They had .not all burned up? A. Oh, no. Q. They did not bum up afterwards ? A. Yes, they all burned up finally.”

I think I have noticed all of the testimony bearing upon this issue save that it is to be noted that the plaintiff testifies that the hay, oats and rye straw burned were in barn No. 2 (of which the contents were not insured), and that if this was the fact he was not entitled to recover therefor in any event. The learned counsel for the respondent insists that this testimony was a manifest error on the part of the plaintiff, but I am not convinced as against the record as it reads.

I think, then, that the great preponderance of the evidence indicates that the plaintiff could have determined by inspection on the 16th. day of July the extent of his loss. It indicates that the plaintiff could have seen that the buildings had lost their character as buildings, that they could- not be thus • designated, so that there was a total loss thereof within the rule of Corbett v. Spring Garden Ins. Co. (155 N. Y. 389), and that the personal property covered by the policy had been or at least would be totally destroyed. (National Wall Paper Co. v. A. M. M. Fire Ins. Co., supra, 228.) The fact that “ a few bags ” of oats were culled out finally did not indicate that the plaintiff could not on the 16th of July have determined the character and extent of the loss in that respect or suffice to change the character of a total to a partial loss. (Singleton v. Boone County Home Mut. Ins. Co., 45 Mo. 250.)

Proofs of loss were mailed in the city of Poughkeepsie on September 14, 1910, and received by the defendant on Thursday, September 15, 1910. If the condition of the conflagration was such that on July 16,1910, the plaintiff could have learned the extent of his loss, then it follows that the plaintiff did not comply with the provision inasmuch as the proofs were not received within the prescribed period of 60 days. (Peabody v. Satterlee, supra; Fink v. Fink, 171 N. Y. 616, 623.)

The proofs of loss were sworn to before a commissioner of deeds, Poughkeepsie, N. Y., but there was an absence of venue. The omission is amendable in furtherance of justice. (Nichols N. Y. Pr. 508 and cases cited.)

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Burr, Woodward and Rich, JJ., concurred; Hirschberg, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  