
    Isaac Davis, Respondent, v. The Grand Rapids Fire Insurance Co., Appellant.
    (Superior Court of Buffalo —General Term,
    December, 1895.)
    1. Fire insurance—Proofs of loss.
    Retention of proofs of loss for more than twenty-three days without objection operates as a waiver of, defects therein.
    2. Same — Items.
    The clause in a policy requiring an itemized statement of the cost, value and amount of loss on each- article applies only to the goods saved from the fire; not to those which were burned.
    3. Same.
    A statement in -the proofs of loss that the property belonged to the assured and no other person or persons had any interest therein is equivalent to a statement that there were no incumbrances on the prpperty. ' •
    4. Same — Option to take property.
    Before the insurer can claim a breach by the assured of an option clause allowing the insurer to take the property at the appraised. value, by reason of a sale of the property by the assured after the appraisal, it must have taken some steps to show-that it wished to avail itself of the option.
    Appeal by defendant from a judgment entered upon the .verdict of a jury and from an order denying a motion for a new trial made upon the minutes of the court.
    
      Adellert Moot, for appellant.
    
      Moses Shire, for respondent.
   Hatch, J.

We have read with care the voluminous record in this case, and with interest the exhaustive discussion of the testimony in the brief submitted, by the learned Counsel for the appellant. And while we find much testimony and some basis for suspicion respecting the entire integrity of the claim of loss and its extent, we' are constrained to hold that plaintiff’s claim did not lack a sufficient ■ support of testimony to present a question, of fact for the jury to decide upon all the ' essential features requisite "to find the.verdict in hisiavof. It might be of interest to the parties, if not satisfying to each, to here set down the testimony and process of reasoning by which we reach this result, but it would prove of little valué and • establish' no precedent respecting plaintiff’s interest in the property. The complaint, was Sufficient. ■ It states the , issuance to plaintiff of the policy, describes the property insured ' in the same words as used therein and makes the same a, part of. the complaint. Reference to the eleventh clause in the policy shows that its requirement was unconditional and sole ownership.' And by the fifty-sixth clause the written consent of the company is required to be attached Or appended to the policy in the event that interests other than those, possessed by the insured exist. Referring to the language descriptive of the property and its ownership, the requirement is that it shall be his own, held.in'trust, but not removed: These requirements are to be construed as forming a part of the complaint, and, in substance, the allegations and. policy show that the plaintiff was. owner or holder in trust of the property when the insurance was effected^ .and that he so continued as . owner or holder will be presumed, ás nothing appeared Upon .the policy to show that, any one else held or had acquired any interest therein at any time. If, however, the rule were different, the evidence establishes sole ownership in the plaintiff, and it would now be-otir duty to.amend the Complaint to-conform thereto, if essential to support the judgment. Harris v. Tumbridge, 83 N. Y. 92.

In defendant’s motion for a nonsuit at the close oil the. plaintiff’s case, and more especially at the close of. the proof,' it is claimed that plaintiff had failed to show compliance With ■ the conditions of the policy subsequent to the fire in several particulars. It is not denied but that notice of the fire was immediately given at the agency from which the policy issued, and if we assume that this was insufficient, it appears in fact that this notice was brought home to the company, and that in fact their representative was at the scene of the fire shortly after it occurred. The proofs of loss bore date November 29, 1893, and were stamped as received by the company on December fifth. The fire occurred November tenth. In respect, therefore,' to the notice of the fire and the time of filing proofs of loss there was a substantial compliance with the requirements of the policy. The proofs of loss were retained by the defendant without objection, so far as the record shows, until January 2, 1894, nearly a month from time of reception, when a letter was written objecting to the same, and requiring further proof in that regard. It has been settled that retaining proofs of loss without objection is a waiver of any defects contained therein. Keeney v. Home Ins. Co., 71 N. Y. 396.

And Where the company retained proofs of loss for a period of twenty-three days and then returned them, coupled with circumstances showing want of good faith on the part of the company, it was held that the jury Were authorized to find a waiver of the conditions. Paltrovitch v. Phœnix Ins. Co., 143 N. Y. 73.

The rule would, therefore, seem to be that where proofs of loss are retained or held for a time and then-returned, dependent somewhat upon the particular circumstances of the case, it may be made a basis for the jury to find a waiver of compliance with the conditions. The first objection which the company made required plaintiff to make a complete inventory stating quantity and cost of each article and amounts claimed thereon. Also, cash value of each item and amount of loss thereon. All incumbrances thereon and any changes in the title, use, occupation, location, possession or exposure of the property since the issuing of said policy. The plaintiff replied to the first two objections, under date of January ninth, claiming that as the goods not specified in the proof of loss were burned, there was an impossibility of compliance in that respect, and that the parties would be of necessity relegated to the books to determine it. As to .the third, that the proofs stated there was no incumbrance, and the last, that there had been no change. Reference to the proofs of loss show that the claim as stated was based upon the inventory of purchase, goods since purchased, labor on made-up garments, less the sales, profits thereon and what was realized -upon the sale of stock after the fire. The claim being for goods absolutely destroyed by the fire, the proofs of loss could not-practically contain an itemized statement of them,- and plaintiff was right in insisting that impossibilities were! not required, and that the clause in the policy related to goods saved from -the fire, not those that were burned. As to those not burned, defendant’s representative made an inventory in company with a representative of plaintiff. The first two objection's were, therefore,- without merit. The proofs stated that the property belonged to the assured' and no other person or persons had any interest therein. . This was a practical statement that there was no incumbrance upon the. property. The last ground, of objection is found stated in the proofs of loss in nearly the identical words of the. objection. It, therefore, appears with some clearness that the objections to the proofs of loss authorized the jury to find, that defendant waived whatever of defects there were. It is further claimed that plaintiff violated the provisions of the policy in selling the goods. It appeared that the goods were sold at auction on November twenty-ninth, Tuesday; that-notice of the auction was published in two daily papers on the Saturday prior thereto; that the defendant was notified by telegram of the sale, at what particular time does not appear, and that. there were several people at the sale. The goods which survived the fire brought at such sale $250. Prior to this time the inventory by defendant’s agent had been taken, and the kind, quality and value of these goods were then known. No demand for any other appraisement had them been. made, or was ever thereafter made, and it does not appear from any witness-for defendant that the goods were worth more than the price at which .they sold. Plaintiff claims they brought all they were worth. The clause in the policy provides that It shall be optional, however^ with this company, to take all, or any part, of the articles at such ascertained or appraised value, * * * within a reasonable time, on giving notice within thirty days after the receipt of the proof herein required of its intention so to do.” No claim is made-that the option here provided for was ever exercised or attempted to be exercised, or that any notice of such intention was ever given. The basis upon which this step could be taken existed because the value had been ascertained, the proofs of loss were served, and if defendant proposed to exercise its right it had the reserved thirty days in which to do it. The fact that plaintiff sold before the expiration of the time did not at all affect the right of, the defendant to demand compliance with this condition. But before it could put defendant in default of a violated condition, it must have itself taken steps to show that it wished to avail itself of the option. Not having done that, plaintiff is not in fault for selling. He was required to do something, as by the express provisions of the policy he could not abandon the property to defendant.' It is, therefore, sufficient to. say that defendant did not create the condition which could be violated by plaintiff, consequently, there was no violation of any condition. And, in • addition, defendant is not shown to have been prejudiced by anything that was done in this regard. The principle of the decision in McNally v. Phœnix Ins. Co., 137 N. Y. 389, applies to this case, and in view of it we do not think there has been .such departure from the terms and conditions of the policy as will work a forfeiture.

We have examined the other exceptions in the case, but ar,e unable to see error therein.

The judgment and order appealed from should, therefore, be affirmed, with costs.

White, J., concurs.

Judgment and order affirmed, with costs.  