
    Simon Paltrovitch, Resp’t, v. Phœnix Insurance Company of Hartford, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 19, 1894.)
    
    1. Insurance—Fire—Policy—Construction.
    The stipulations of a policy, which relate to the procedure merely, after the occurrence of a loss, are to be reasonably, and not rigidly, con strued.
    3. Same—Certificate of nearest notary.
    Good faith on the part of the company' requires that, when it rejects a certificate on the ground that there is a nearer notary, whose certificate it requires, it should give the name and address of such notary, to enable the insured to comply with its demand.
    3. Same.
    In this case, a provision requiring the certificate of the nearest notary to accompany the prdofs of loss, was held to be waived by the company's retention of the certificate of another notary for twenty-three days.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, which affirmed a'judgment in favor of plaintiff, entered upon a verdict.
    
      G. M. Bushnell, for app’lt; Moses Shire and Edward Jellenck, for resp’t.
    
      
      Affirming 52 St. Rep. 277.
    
   Finch, J.

The loss by fire which the plaintiff seeks to recover occurred in the city of Buffalo on the eleventh day of May, 1891. The insured made out and forwarded his proofs of loss, which reached the defendant company on the 15th of the following June. Accompanying such proofs of loss was a certificate in the substantial form required by the policy, which was signed by A. J. Eoehner, a notary public. The policy-provides that such a certificate made by the magistrate ori notary “ living nearest the place of the fire ” shall be furnished by the insured if required. No such requirement had been ' made when the proofs of loss were sent, but the certificate was furnished voluntarily and in advance to meet the emergency of a possible demand for it. The proofs of loss were kept until the 8th day of July by the company and then returned to the insured with a notice that the company required a certificate from the notary “ living nearest the place of the fire,” and that the certificate furnished would not be accepted as a compliance with the policy. There was no statement that other notaries were found to be living nearer the place of the fire, and stating their names and residences, as good faith and a moderately fair treatment of the insured required, but he was left to carry on his own investigations about notaries in his own way and at his own risk. It turned out that three other notaries lived nearer the place of the fire in one sense of the phrase. This company, in its anxiety for its precise and rigid rights, hired a city engineer to measure the distances with a tape, and both by way of the streets and in a air line over the tops of the houses, and so was able to prove that there were three notaries who boarded and slept a few hundred feet nearer the place of the fire than the one whom the insured supposed to be the nearest. But these later-discovered notaries had their offices and transacted their official business at much greater distances away, and there had their signs and expected their customers. Where they boarded and slept they had no signs, and there was nothing to indicate their presence and existence; and the plaintiff, unaware of their proximity, and not suspecting the sort of investigation to which he was to be invited, took the nearest one he could find whose office and notarial .sign and residence were at the same place. It is upon this narrow and technical ground, with no pretense of substantial justice in it, that the action of the insured is now defended.

We have recently held, and I think very properly, that the stipulations of a policy which relate to the procedure merely, after the occurrence of a loss, are to be reasonably and not rigidly construed, McNally v. Phœnix Ins. Co., 137 N. Y. 398; 50 St. Rep. 680, and I think that the phrase “ living nearest the place of the fire”, ought not to be confined entirely to the food and sleep of the notary and should take account of the place where he lives officially and to which by some public sign he invites those who do business with him, Turley v. N. Am. Fire Ins. Co., 25 Wend. 374; but at all events good faith on the part of the company requires that'when they reject one certificate on the ground that there is a nearer notary whose certificate they require, they should give the name and address of that nearer notary to enable the insured to comply with their demand, and that if they do not do so a jury will be justified in concluding that they do not in reality require the further certificate for any practical or beneficial purpose, but have waived it as an essential condition. For they either want another notary’s certificate or they do not. If they desire it they will name him so that the insured may comply. Otherwise, it is clear that they do not want the further certificate, and will be disappointed if they get it, and make the demand solely and only to secure a technical defense. When to that is added the fact that the company kept the certificate sent for twenty-three days without objection, I think the jury were justified in saying that the demand of a further certificate was not made in good faith and a different performance of the condition was waived.

A suggestion was made to induce a favorable vietv of the technical point raised. It is said that the evidence justified a suspicion of fraud. None was alleged except a very exaggerated estimate of the loss and that the jury corrected by their verdict. It is always easy to say that the company suspects as a reason for a purely technical defense. All parties should have their rights in this court fairly and fully, but a severely formal defense resting wholly upon immaterial matters of procedure ought not to be allowed to work injustice.

While we feel bound to enforce these contracts fully and fairly according to their terms, yet where those terms respect the modes of proof and procedure after the loss, we shall give them always a reasonable and liberal construction and not a severe and technical one. In this case we approve of the conclusions reached by the courts below.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  