
    William D. Jones, Resp’t, v. The Howard Insurance Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 29, 1889.)
    
    1. 'Insurance (Fire) — Conditions in policy.
    A clause in a policy that “ the company will not be liable for loss caused by * * * nor for the use of kerosene," means that for a loss resulting from such use in the manner specified, the insurer will not be liable.
    2. Same.
    A requirement that insured “make diligent effort to save his property,” only relieves the company from liability for damages resulting from such neglect.
    3. Same — Proofs of loss.
    The requirements in the proofs of loss that the interest or title of assured be correctly stated means the title at the time of the fire; and where after the fire he makes an assignment, the company cannot claim that he made a false statement in the proofs of loss in alleging title in himself.
    4. Same.
    Where the policy calls for the certificate of the nearest notary, “if required,” the company cannot defend on that technicality where they do not require such a certificate when proofs of loss are sent.
    5. Same.
    Where assured offer their bills and invoices at the company’s office, and are curtly dismissed, the latter cannot thereafter demand that they present them “ at such time as can be mutually arranged.”
    Appeal from judgment of the supreme court, general* term, third department, affirming judgment for plaintiff entered on verdict.
    
      Norton Chase, for app’lt; John M. Whitman, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 120.
    
   Finch, J.

This action was upon a policy of insurance against loss by fire, and was defended mainly on the ground that the assured himself was the incendiary. The issue of fact thus raised was decided in his favor, and there remained only certain technical defenses which have thus far been overruled, and which furnish the questions on this appeal.

One ground upon which the defendant’s motion for a nonsuit was rested is again urged as a reason for reversal. It is that a condition precedent to a recovery was violated in that lamps were filled with kerosene in the evenings, and by artificial light The clause in the policy cited in support of the objection goes no further than to free the insurer from any loss or damage arising from that cause. The language is “this company will not be liable under or by virtue of this policy for loss or damage caused by the working of mechanics * * * nor for the use of kerosene * * * unless permitted hereon in writing.” The meaning evidently is that for a loss resulting from the use of kerosene except in the manner specified the insurer will not be liable. It did not appear that the fire and consequent loss had any such origin.

It is objected that the assured made no diligent effort to save his property as required by the terms of the policy. That instrument again only relieves the company from liability for damage resulting from such neglect. Whether the assured in truth disobeyed the requirement, whether it was reasonably possible for him to have done more than he did in his endeavor to put out the fire, whether by any risk or effort he could have saved anything after he was driven from the building by the flames, and so whether any part of the loss was due to his neglect were questions of fact upon the evidence, and must be deemed to have been answered in his favor by the verdict against the defendant.

The further objections cluster about the proofs of loss. The policy requires such a paper to be furnished, and specifies what it shall contain. The assured gave in substance all the information required by the terms of the policy. The defendant company received the proofs and kept them in its possession, without objection, for forty-five days, and then, without returning them, wrote a letter to the insured, claiming that they were defective and insufficient, and subject to his order.

A review of the objections made will show that some of them were frivolous, and none of them sound. Thus, it was objected that “the interest or title of the assured and others in the property alleged to have been destroyed is not correctly or fully stated.” At the time of the fire the assured was sole owner. Five days after the fire he made a general assignment for the benefit of his creditors to the present plaintiff. Some twenty days later he signed the proofs of loss, which were sent to the company, and the demand of the assignee for payment has been refused. In the proofs of loss it was stated that the assured, at the time of the fire, was sole owner. The policy requires that “ the assured, sustaining loss or damage by fire, and making claim therefor, shall * * * render a particular account of said loss, * * * stating * * * the interest and title of the assured and of all others therein.” This evidently refers to the time of the loss and the state of the title at that date. The objection made to the proofs of loss was not that the ownership of the claim against the company was not stated, but that “ the title of the assured and others in the property alleged to have been destroyed is not correctly or fully stated.” The objection is frivolous. The title of the assured in the property destroyed was stated, and both correctly and fully. Nowhere was he required to show who owned his right of action for the loss, and there is not the least pretense that the company were ignorant of or in doubt about that.

It is objected, again, that “the statements of the cash value of the property destroyed are contradictory and inaccurate.” They were not contradictory. One sum was named as the actual cash value, and no other. • There was, indeed, an explanation of the manner in which the assured arrived at his estimate, and that, intended to confirm, may rather have contradicted his statement of actual cash value. Whether it was inaccurate or not, however, was a question of fact for the jury, which they have determined in the plaintiff’s favor.

It is again objected that the origin of the fire was not correctly stated. The proofs declared that the cause of the fire was to ■the assured unknown. That was a correct and sufficient statement unless he lighted the fire himself, and the jury have said that he did not.

It is urged against the recovery that the certificate of the nearest notary was not obtained. There was one about twenty feet nearer the location of the burned building, but who was himself a sufferer from the same fire, and so concerned in the inquiry whether the assured was the incendiary or the fire an accident. The policy does not call for such a certificate unless “if required.” No such requisition had been made when the proofs of loss were sent, and ■the certificate attached was simply superfluous. The objection made was not a requirement. It was a claim that the proofs were not sufficient because a certificate of the nearest notary, “ as provided by the conditions of the policy,” had not'been furnished. No condition was violated until the insurer, after the loss, formally required the certificate to be furnished, which never was clone.

A further objection is that another condition precedent to re- ' ■covery was violated, in that the company was never furnished with original or certified copies of bills or invoices of the property destroyed. The policy puts that burden on the assured only in case he is so required to do by some person appointed by the company. No such requirement was made until some time in June, long after the proofs of loss had been rejected and about four months after the fire. Before that demand the assured' and his assignee presented themselves at the office of the company in New York, with all the bills and invoices they could obtain to submit to their examination. The president somewhat curtly dismissed them; and thereafter, on June 18, the general agent writes demanding presentation of books and vouchers and an examination “ at such time as can be mutually arranged.” The demand came too late, and was of no force or consequence because it fixed no time. It arbitrarily assumed the right to delay a settlement until such unknown time in the future as should suit the will and pleasure of the officers of the company in .making a mutual arrangement, What right they had was lost by the unexcused delay and the failure to make the demand in such form that it could be promptly and definitely obeyed. This treatment of the assured had about it no element of fairness or justice. In addition, it appears that the general agent had already examined the assured in such manner and to such extent as he chose.

The final objection argued is that the proofs of loss did not contain copies of the written portion of other policies. The proofs named the other policies, specified the insurers and amounts of the risks, described them as covering the same property, and as “concurrent with the one herein described.” The written portions of that were given. I think this was a substantial performance of the condition; but, if not, the objection was waived by the delay. The proofs of loss were perfect in every other respect, and there is not a shadow of excuse for waiting forty-five days, to demand a more perfect performance, by giving formal copies of other policies. Keeney v. Home Ins. Co., 71 N. Y., 396.

We are thus of opinion that no ground exists for a reversal.

The judgment should be affirmed, with costs.

All concur.  