
    Adeline F. Austen, Appellant, v. Niagara Fire Insurance Company, Respondent.
    
      Mre insurance — delay in bringing an action for a loss, beyond, the prescribed time — excused where it results from, a demand for proofs and the delay of appraisers — appraisers a/re agents far both pa/rties.
    
    Provisions contained in a .policy, of fire insurance that an action thereon must he commenced “within twelve months next after the fire,” and that the sum for which the insurer is liable is payable sixty days after, “ascertainment, estimate and satisfactory proof of the loss has been received by ” the insurer, ‘ ‘ including the award by the appraisers when an appraisal has been required,” are not a bar to an action upon such policy brought some fifteen months after the fire, and about a month after the expiration of the sixty days after the close of the appraisal, where the delay has resulted from a demand of the insurer fqr proofs of loss, other than those tendered by the insured, in compliance with the requirements of the policy, and from the dilatory action of the appraisers.
    Both parties are in such case responsible for the acts of the appraisers and umpire, who are the agents of both.
    Appeal by the plaintiff, Adeline F. Austen, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Westchester on the 2d day of November, 1896, upon the dismissal of her complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester.
    
      Charles De Ha/rt Brower, for the appellant.
    
      Michael H. Ccurdozo, for the respondent.
   Goodrich, P. J.:

The action was brought upon a fire insurance policy in the standard form to cover loss on personal apparel, household furniture, etc., resulting from fire at Yorktown Heights, December 19, 1894, and was commenced March 26, 1896. The policy contained the usual clauses, among which were the following: “The loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.

“No suit * * * on this policy * * * shall be sustainable * * * until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. * . * *
“ The sum for which this company is liable pursuant to this policy shall be payable sixty days after * * * ascertainment, estimate and satisfactory proof of the loss have been received by this company, in accordance with the terms of this policy.”

As the action was not commenced “within twelve months next after the fire,” it becomes necessary to ascertain the reasons for such delay and to decide whether'it was occasioned by the action of the assured. Notice of the loss was served on the defendant December 20, 1894, and proofs of loss on January 12, 1895. On February sixteenth the defendant objected to the proofs. In compliance with said objections the plaintiff, on February twenty-sixth and on March nineteenth, served further proofs of loss, and the defendant, on March twenty-second, made further objections, and on March twenty-seventh the plaintiff served further proofs. On April sixteenth the defendant demanded an inspection of the bills and books of the plaintiff, and on- April twenty-sixth the plaintiff, in response thereto, served further papers. Previously, on February twentieth, the defendant had demanded a personal examination of the plaintiff which, as appears by the allegations of the complaint and admissions of the answer, extended, apparently, beyond April twenty-sixth.

The complaint alleged the appointment of appraisers and umpire in accordance with the policy, and their appraisal of the loss on December 20, 1895. The answer denied this allegation, but it was stipulated at the trial that the plaintiff had made a demand for the appraisal; that the defendant had acceded to such demand; that the . appraisal was had, and that the appraisers made an award appraising the sound cash value of the property at $5,673.05 and the.damage thereto at $4,660.80.

To account for the delay in commencing this action the. plaintiff offered evidence showing that on April 2, 1895, he had named Mr. Ogden as his appraiser; that the defendant had appointed Mr. Crolius, arid that correspondence ensued between the appraisers relative to the appointment of an umpire which extended from April eighth ■ to June twenty-fifth, at which time Mr. Lefevre was appointed umpire. Still further correspondence ensued between the parties owing to the refusal of Mr. Orolius to proceed with the appraisement until certain papers were signed, or until some paper was exe- ■ cuted limiting the duties of the appraisers and umpire to an assess- ■ ment of the damages. The plaintiff refused to sign such papers, but ■ offered to sign an agreement which should provide for an estimate and appraisement of the loss.”

; The appraisers did not act until September twenty-sixth, and on : December twenty-third the appraisal was closed. As the policy provided that the loss was payable * * * sixty days, after * 7 * ■ ascertainment, estimate and satisfactory proof of the loss,” the plaintiff could not bring his action until the 21st of February, 1896, and . the action was commenced on March twenty-sixth.. The delay in ' ;the commencement of the action resulted from the delayed action of , the appraisers, and the question is whether or not the defendant had , . waived the provision of the policy which required the commencement of the action within twelve months. At the close of the plaintiff’s • evidence the defendant moved for the dismissal of the complaint on the ground that the action was not commenced within one year after . the fire. The court held that the defendant had not waived anything,- that the delay was the fault of the plaintiff, and directed a , dismissal of the complaint.

The appraisers and umpire, when appointed, became the agents of both parties, and for their action both parties were equally responsible.

In the case of Barnum et al. v. Merchants’ F. Ins. Co. (97 N. Y. 188) it was held that where the insurance company had objected .. to the sufficiency of the proofs of loss and demanded further proofs, and thus imposed upon the insured the duty of making them complete; the limitation of sixty days is necessarily extended.

In the case of The Mayor, etc., v. Hamilton Fire Ins. Co. (10 Bosw. 537) it was held that an action brought promptly upon the expiration of sixty days from the adjustment of the loss was not barred because commenced more than six months after the loss occurred. The court (at p. 547) said : And where the parties, in good faith, and without any objection that unnecessary time is taken for the purpose, are occupied so long in adjusting proofs that sixty days from the date of adjustment will not expire within the six months, •the policy does not become forfeited merely because the suit is not brought within the six months, and before the loss is payable.” And in Holladay's Adm'r v. Phenix Ins. Co. (7 U. S. App. 325) the court held that any other, construction would make the provision of the policy an instrument of fraud.

The defendant’s counsel contended that the delay was caused solely by the fault of the plaintiff; that his counsel undertook to force the construction of the appraisement clause upon the defendant and the appraisers, and that the refusal of one or more of the appraisers to act under this erroneous construction unjustly delayed the completion of the appraisement.

We express no opinion upon the question whether the counsel’s advice was, or was not, correct. It is sufficient to say that the appraisers were not concluded in the performance of their work by the opinion of the plaintiff’s counsel. They could have disregarded his opinion and proceeded with their work, leaving the questions of law to the determination of a proper tribunal whenever presented. *

It is not necessary to review any other questions than those which have been considered in this opinion to necessitate the reversal of the judgment.

The judgment and order are reversed, and a new trial granted.

All concurred.

Judgment reversed, and new trial granted, costs to abide the event.  