
    Frank McNally et al., Pl’ffs, v. The Phenix Insurance Co. of Brooklyn, Def’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Insurance (Fire)—Premature action.
    On June 17, 1885, proofs of loss by fire were served on the insurer, which did not contain a magistrate’s certificate and the same were rejected. On June 7, 1886, proofs of loss and the. certificate were served and this action commenced the same day. Held, that as the company had sixty days after proofs of loss in which to pay, the action was prematurely brought.
    Exceptions directed to be heard at general term in the first instance after dismissal of complaint ordered at the close of plaintiffs’ testimony.
    
      Carpenter & Roderick, for pl’ffs; James & Thomas H. Troy, for def’t.
   Barnard, P. J.

This action is based upon a policy of insurance issued by defendant to the plaintiffs. The application dc- • scribed the property as “used as a storage ice house.” The policy which was issued on May 2,1885, describes the property as “occupied as a storage ice house." The building was destroyed by fire, June 7, 1885. On the 8th of June, 1885, the company without knowledge of the fire gave a consent that the loss be paid to the mortgagee who held a mortgage on the property. On the 17th of June, 1885, preliminary loss papers were served. The premises were never occupied as a storage ice house or used as such. It was new and partly completed at date of policy. No certificate of a justice of the peace accompanied the loss papers. The loss papers were rejected by the company, and on June 7, 1886, this certificate of the justice was served with other loss papers. The action was commenced the same day. By the policy sixty days are given before the loss is payable after the full and complete loss papers are served. The action is therefore prematurely brought.

The exceptions should therefore be overruled and judgment given for defendant, with costs.

Dykman and Pratt, JJ., concur.  