
    Mary Messelback, App’lt, v. The Sun Fire Office, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 9, 1890.)
    
    1. Insurance (fire)—Policy—Waiver of conditions in.
    Under a policy containing a provision that the insurer “ shall not he bound by any act or statement made * * *, by any agent * * * which is not authorized by this policy or contained therein, or in any written paper mentioned therein,” the power can only be exercised in the mode prescribed, unless it is shown that the agent possessed, actually or apparently, the power of his principal in respect to the provision alleged to have been waived.
    2. Same.
    General conversations by an agent in which he states he “ would stop and fix the policy ” so that the house could stand unoccupied, etc., will not be considered a waiver of such conditions where the policy also contained a provision that ‘ ‘the use of general terms or anything less than a distinct, specific agreement, clearly expressed and endorsed on the policy, shall not be considered as a waiver of any printed or written condition expressed therein,” and where the evidence of the terms of the agent’s authority was very meager and general in its character.
    
      Appeal from an order of the general term of the third judicial department, reversing a judgment in favor of the plaintiff entered on the report of a referee, and granting a new trial.
    
      Eugene Burlingame, for app’lt; A. H. Sanger, for resp’t.
    
      
       Affirming 11 N. Y. State Rep., 823.
    
   Follett, Gh. J.

June 9, 1883, the defendant insured the plaintiff against such "loss or damage, not exceeding $1,500, as should be caused by fire during the next three years, to a building then in process'of erection, which, when completed, was to be occupied as a dwelling. The policy contained, among others, the following provisions:

“This policy shall become void unless consent in writing is endorsed hereon by or on behalf of the society in each of the following instances ¡ * * * If any building hereby insured be or become vacant or unoccupied for the purpose indicated in this contract.”

The building was finished August 1, 1883, and thereafter was occupied as a dwelling by a tenant until April 17, 1884, when he left, and. the building remained unoccupied until April 26, 1884, when it was totally destroyed by fire. The building was unoccupied within the meaning of the policy. Halpin v. Phenix Ins. Co., 118 N. Y., 165; 28 N. Y. State Rep., 788.

No written consent was endorsed on the policy that it should' continue in force while the building was unoccupied, and it is conceded that no recovery can be had unless the evidence establishes a waiver of this provision. Undoubtedly a party to a contract which contains a provision that it shall not be changed except by a writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct, and so the acts of an agent who possesses the power of the principal, or who has been held out by the principal to possess his power in respect to the provision alleged to have been altered or- changed, may also estop his principal. But under a policy containing a provision that the insurer “ shall not be bound * * * by any act of or statement made * * * by any agent * * * which is not authorized by this policy or contained therein, or in any written paper mentioned therein,” the power can only be exercised in the mode prescribed, unless it is shown that the agent possessed, actually or apparently, the power of his principal in respect to the provision alleged to have been waived. Walsh v. Hartford Ins. Co., 73 N. Y., 5; Marvin v. Universal Life Ins. Co., 85 id., 278.

Upon the question of waiver, the plaintiff testified:

“ When Mrs. Jones, the tenant, moved out of the building, I went and saw Mr. Bennett (the agent of defendant) right away.

“ Q. What did you say to him ? A. I told Mr. Bennett the tenant wanted to go out, and I wanted to move in myself; he said, all right. * * *

“ Q. What, if anything, did you say to the agent about the property being vacant, and about the policy of insurance ? A. I told him the -folks had gone out, and I would go in in a few days; he said, all right; he did not say anything about the policy or the insurance; Bennett told me when he gave me the policy to notify him if the people were moving out; I did not say anything else to him.”

The plaintiff’s son-in-law testified:

“ Q. What have you heard him (Bennett) say in relation to the policy in suit in reference to Mrs. Jones moving from the premises ? A. I heard Bennett say in Amsterdam that he told plaintiff that he was going to have business in Schuyler street, and would stop and fix her policy, so that it would be all right providing it was vacant; he said he told her this the same day she notified him the family were going to move out.”

This is the only evidence tending to establish a waiver. The referee did not find as question of fact that there was a waiver of any of the provisions of the policy, but simply found that the conversations above quoted were had (15th, 16th and 17th findings), and decided as a question of law that they constituted a valid waiver. This conclusion is open to two objections : (1) It violates the following provision of the policy: “ The use of general terms or anything less than a distinct, specific agreement, clearly expressed and endorsed on the policy shall not be considered as a waiver of any printed or written condition expressed therein.” (2) There is no evidence that Bennett had power to waive by conduct or in any way, except as specified in the policy, any of its provisions. The evidence in respect to the terms of Bennett’s agency is very meager and general in its character. The plaintiff testified that the policy was delivered “ by Lyman Bennett, defendant’s agent.” The policy was countersigned by “ Lyman Bennett, agent,” and a consent endorsed on it when issued that the building be finished without extra charge was signed “ Lyman Bennett, agent,” which is all the evidence from which the extent of his powers can be ascertained. There is no finding describing the extent of his powers or the character of his agency, whether it was general or special. Such a record is quite insufficient to justify this court in holding as a matter of law that Bennett possessed the powers of the principal in respect to the provision under consideration, or any powers except such as he was shown to have exercised. The burden of showing that Bennett possessed the powers of the principal was under the terms of the policy upon the plaintiff which she failed to sustain. No legal waiver of the provision in respect to unoccupancy having been established, the plaintiff, was not entitled to recover.

The order should be affirmed and judgment absolute rendered against the appellant, with costs.

All concur, except Haight, J., absent.  