
    Margaret King, Resp’t, v. Watertown Fire Ins. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 20, 1888.)
    
    1. In suit once—Condition limiting time within which action upon POLICY MUST BE BROUGHT IS VALID.
    A policy of insurance contained the following clause: "It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or equity * * * unless such suit or action shall be commenced within twelve months next after the fire shall have occurred, and should any suit or action be commenced against this company after the ex piration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim." Held, that such a condition was binding upon the parties to the instrument, and that the year within which the action might be brought commenced to run from the date of the fire.
    2. Same—What amounts to waiver op condition.
    
      Held, that any act or conduct on the part of the insurance company indicating an intention to waive a forfeiture occurring subsequent to a breach of the condition would constitute a waiver.
    3. Same—What will hot amount to waiver.
    The policy was issued for three years upon the condition that if it should be continued by renewal it should be continued under the original representations, and that any change in the risk not made known to the company at the time it was so continued should render it void; or if the property insured was or should become incumbered by mortgage, judgment or otherwise, and not be so stated in the application or indorsed in writing upon the policy, it should be void. By an indorsement made upon the policy by the authorized agents of the insurer after the recovery of certain judgments which became liens upon the property, the holder of one of these judgments, payment of which was secured by mortgage, was insured to the extent of his mortgage. Held, that the insurer had a right to pay the mortgagee the amount which was secured by his mortgage and did not thereby waive its right to litigate with the party to whom the policy was issued the right to the remainder of the Sum.
    Appeal from a judgment entered in Livingston county upon the report of a referee.
    
      A. H. Sawyer, for app’lt; Daggett & Norton, for resp’t.
   Haight, J.

This action was brought upon a policy of insurance issued by the defendant upon a dwelling-house and personal property contained therein, which had been destroyed by fire on the 26th day of March, 1883. This action was commenced on the llth day of May, 1884, more than a year afterwards. The policy contained the following condition.” It is hereby expressly provided that no suit or action against the company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or equity, until after full compliance by the assured, with all the foregoing requirements; nor unless such suit or action shall be commenced within twelve months next after the fire shall have occurred; and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim.” Ho question is made, but that the foregoing condition is binding upon the parties. Its validity is well-settled. Steen v. The Niagara Fire Insurance Company, 89 N. Y., 315, 321; Wilkinson v. First National Fire Insurance Company, 72 id., 499; May on Insurance, § 478.

It is contended, however, that the year did not commence to run until after the expiration of the sixty days given the company in which to make payment after service of the proofs of loss, which was made on the 23d day of May, 1883.

•In the case of Steen v. Niagara Fire Insurance Company {supra), the policy contained a similar condition, except it provided the suit or action shall be commenced within twelve months next after such loss or damage shall have occured. In that case it was held that the words, “After such loss or damage shall have occurred,” did not limit.it to the time of the fire; but Danforth, J., in delivering the opinion of the court, says: “No doubt the appellant could have stipulated that the time of the fire should be looked to as the event from the happening of which the limitation should run. But it would require distinct language to show that such was the intention of the parties. It is not used here. It is found in Schroeder v Keystone Insurance Company (2 Phil., 286 ” In that case the provision was* “That no suit shall be maintained on this policy unless brought within six months after loss occurred and after the expiration of six months from such fire such lapse of time shall be conclusive evidence against the validity of any claim under this policy.” So that whilst the words, “after such loss or damage shall have occurred,” are not sufficient to limit the time to that of the fire, the words quoted from Schroeder v. Keystone Insurance Company are sufficient.

In the case under consideration the words are even more explicit. They are, as we have seen, that the suit or action shall be commenced within twelve months next after the fire shall have occurred. We can conceive of no words that would make it any more definite or certain, and consequently must agree with the referee that the year commenced to run from the date of the fire.

It is contended, however, and the referee has so found that there has been a waiver of this condition. There is no doubt but that any act or conduct on the part of the insurance company indicating an intention to waive a forfeiture, occurring subsequent to the breach of a condition, would constitute a waiver. Brink v. Hanover Ins. Co., 80 N. Y., 108.

The only question, therefore, is as to whether or not there has been anything done indicating an intent to waive this condition. The policy was issued on the 17th day of August, 1880, for three years. It insured Michael and Margaret King to the amount of $400 on real and personal property, $300 on their frame dwelling house and $100 on their household furniture, provisions and wearing apparel therein. It contained the condition, “That if this policy shall be continued by renewal, it shall be considered as continued undei the original representations, and that any change in the risk not made known to this company at thu time it is so continued shall render this policy void; or if the property hereby insured, either real or personal, or any part thereof, be or shall become incumbered by mortgage judgment or otherwise, and not so stated in the written. application or indorsed in writing on the policy, this policy and every part thereof shall be void.”

Subsequently three judgments were obtained against Margaret Kang, the plaintiff herein, which had become liens upon the premises insured, one of which judgments was entered upon her confession. Thereafter she executed and delivered to one John Dunn a mortgage upon the premises, and the agents of the defendant, under date of May 17, 1882, indorsed upon the mortgage the following: “Payable, in case of loss, to John Dunn, mortgagee, as his mortgage interest may appear.”

The complaint alleges that since the loss, and in or about the month of April, 1884, the defendant paid to John Dunn, the mortgagee, the sum of $112, being in full amount and satisfaction of Dunn’s interest in the policy of insurance as mortgagee. This allegation is not denied by the answer and therefore stands admitted. The referee has found this fact in accordance with the allegation of the complaint and then, as a conclusion of law, that it is a waiver of the condition requiring the action on the part of the plaintiff to be commenced within twelve months after the fire shall have occurred.

In his opinion he states that the payment was voluntary, but he does not so find in his report, neither was it so alleged in the complaint. If a payment in part of the loss had been made to the plaintiff there would be force in the conclusion of the learned referee. Whilst ordinarily whatever avoids the policy as to the insured avoids it as to the mortgagee, there are exceptions to the rule. In this case the appellant insists that the recovery of the judgments, and especially the one that was entered by confession, avoids the policy as to the plaintiff. Without stopping to consider whether or not this claim is well founded, no such claim can be urged as against the mortgagee, for by, an indorsement made upon the policy by the defendant’s duly authorized agents after the recovery of those judgments and the breach of the condition, if there was a breach, the mortgagee was insured to the extent of his mortgage. The company therefore, had the right to settle with and pay. the mortgagee and litigate with the plaintiff as to the balance, the question as to whether she could recover under the condition avoiding the policy in case the premises should become incumbered by judgment or otherwise. The appellant in its brief states that it is not a fact that the payment was voluntary; that the mortgagee brought an action shortly after the fire occurred for the amount his due under the policy and recovered a judgment thereon, and that it was this judgment that was paid by the company; but this fact does not appear upon the record and the question of payment must stand upon the allegation of the complaint which, as we have seen, does not allege that it was voluntary; and under the circumstances we are of the opinion that it does not make any difference whether it was or not. This conclusion may result in a loss to the plaintiff, but we are unable to see any escape from it. The payment to the mortgagee not indicating an intention to waive the forfeiture as to the plaintiff, the judgment must be reversed and a new trial ordered before another referee, with costs to abide the event.

So ordered.

Barker and Bradley, JJ., concur.  