
    Abraham Langsner, Appellant, v. The German Alliance Insurance Company, Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Insurance: Adjustment of loss — Necessity of arbitration — Time for request — Actions on policies — Questions for jury — Reasonableness of delay and good faith in demanding appraisal.
    Questions of law and fact — Reasonable diligence; Good faith.
    Where a loss under a policy of fire insurance is payable within sixty days after the proof of loss is filed, unless an appraisal be had in the meantime in which event the loss is payable within sixty days after the determination of the appraisers, the insurer must demand an appraisal within a reasonable time according to the facts of the particular case and has no absolute right to demand the appraisal on the sixtieth day.
    Where the facts are undisputed, the question of what is a reasonable time is one for the court.
    Whether a demand for an appraisal under such a policy was made in good faith is a question for the jury, since it bears on the question of the insurer’s waiver of an appraisal or the release of the insured from any obligation to enter upon one.
    Appeal from a judgment dismissing the complaint and from an order denying a new trial, entered in the Municij al Court of the city of New York, first district, borough of ¡Manhattan, after a trial before the court and a jury.
    Hartman & Schuhmaun, for appellant.
    Wm. D. Murray, for respondent.
   Bijur, J.

Plaintiff sues for $500 loss by fire to household effects, covered by a $600 insurance policy, issued by defendant in what is known as the»“ standard form.” The fire occurred on October 15, 1909. The adjuster, on behalf of plaintiff, notified defendant thereof immediately. Formal proof of loss was filed ¡November 3, 1909. Two-thirds of the claim was for goods totally destroyed and one-third for partial damages. Defendant did not demand an appraisal until, in a letter dated December 24th, but postmarked December 27, 1909, i. e., fifty-five days after proof of loss and seventy-two days after the fire. Plaintiff refused to enter upon an appraisal.

Defendant’s chief adjuster called at the premises within a week after the fire, saw everything and had a full talk with plaintiff, who stated that the goods totally destroyed had been thrown out; and the adjuster noticed their absence. An assistant adjuster paid a similar visit during the same period. They both told plaintiff that his claim was excessive. Plaintiff’s adjuster testified that defendant’s “loss-clerk” had told him that there would be “nothing doing” until the claim was very much reduced.

Defendant introduced in evidence, over plaintiff’s valid objection, an anonymous postal card, received by it two days after the fire, intimating that there was something suspicious about it. Plaintiff gave proof of the “sound” and “ damaged value ” of the goods destroyed.

At the close of the w'hole case, the court granted defendant’s motion to dismiss the complaint (evidently intended to be equivalent to the direction of a verdict in favor of the defendant), and remarked to plaintiff’s counsel: “¡Now go back and take your appraisal and get your damages.”

The policy provides, in substance, that the loss is payable within sixty days after proof of loss is filed, unless an appraisal be had in the meantime, in which event it becomes payable wdthin sixty days after the determination of the appraisers.

While it is true that it might be said that, under the strict terms of these provisions, the insurer may wait fifty-nine days before demanding an appraisal and need not then pay the loss until sixty days after the determination of the appraisers, that would scarcely be a fair interpretation of the contract, unless in exceptional circumstances. The truer construction would seem to be that the insurer “ has a reasonable period, depending upon the facts of the particular ease,” to demand an appraisal. Chainless Cycle Rfg. Co. v. Security Ins. Co., 169 N. Y. 304, 310.

When, as in the case at bar, the substantial facts are not in dispute, reasonableness of time is a matter for the court to determine. Wright v. Bank of Metropolis, 110 N. Y. 237, 249; Hedges v. H. R. R. R. Co., 49 id. 223, 226.

Under the circumstances of the case at bar, the company’s delay was palpably unreasonable- and should have been so held by the court. At the very least the plaintiff was entitled to the submission to the jury of all the facts, under proper instructions from the court, in order to determine whether the defendant had not waived its right to have an appraisal.

“Either party, however, has the right to require an appraisal when there is a disagreement as to the amount of loss. Silver v. Western Assurance Co., 164 N. Y. 381. That right is not indefinite as to time, but must be exercised within a reasonable period, depending upon the facts of the particular case. ¡Neither party can so use the right as to take undue advantage of the- other, but both must act in good faith. Uhrig v. Williamsburgh City Fire Ins. Co., 101 N. Y. 362; Bishop v. Agricultural Ins. Co., 130 id. 488. It is not a weapon of attack, but of defense, and a party who intends to use it must give reasonable notice of such intention, for its omission to do so will be evidence of waiver, more or less conclusive according to the circumstances. * * it was in the power of the defendant to waive an appraisal, either expressly or by not making a seasonable demand therefor, and the main question that we are called upon to decide is whether there was any evidence to warrant the jury in finding a waiver.” Chainless Cycle Co. v. Security Ins. Co. of New Haven, 169 N. Y. 304, 310, 311.

It was also a question for the jury whether the demand for an appraisal was made in good faith; because, if not, that would either be a circumstance bearing on the alleged waiver, or it would in itself absolve the plaintiff from his obligation to enter upon an appraisal. Uhrig v. Williams-burgh City F. Ins. Co., 101 N. Y. 362, 366; Bishop v. Agricultural Ins. Co., 130 id. 488, 494; Chainless Cycle Co. v. Security Ins. Co., supra.

I

Seabuey and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs' to appellant to abide event.  