
    Amelia Sullivan, Respondent, v. The Prudential Insurance Company of America, Appellant.
    
      Insurance — effect of the retention by the company of proof s of loss, etc,, on a clause of the policy limiting the time within which an action may, be begun thereon.
    
    Evidence given- in an action upon a policy of life insurance, containing a provision that no action should be brought thereon unless it was commenced within six months after the death of the insured, to the effect that the defendant received the proofs of death, the policy,, the assignment to the -plaintiff, and a book containing receipts of payments on the policy, furnished by the plaintiff shortly after the death- of the insured, and had since retained them, -is of-.itself sufficient to raise a question of fact as to whether the defendant waived the limitation clause contained in the policy.
    Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor, of the plaintiff, entered in the office of the clerk of the county of Westchester-on the 23d "day of February, 1900, on the verdict of a jury rendered by direction of the court.
    . William O. Gampbell, for the appellant.
    ' Joseph T. Magee,, for the respondent. .
   Goodrich, P. J.:

The action is brought upon a policy of life insurance issued by the defendant to one Patrick J. McGuinness, dated February. 5,. 1894, and assigned to the plaintiff on March 21, 1894; McGuinness died on April 3, 1895. Proofs of death, the policy, the assignment to the plaintiff, and a book containing receipts and payments on said policy from February 5, 1 894, to April 8, 1895, were delivered to the company and have ever since been retained by it. The policy contained the following clause :

“ Eighth. No suit or action at law or in equity shall be maintainable with respect to the payment of this Policy until after the tiling in the principal office of the Company of the above-mentioned proof of death nor unless such suit or action shall be commenced within six months next after the decease of the person insured under this Policy; and it is expressly agreed that, should any such suit or action be commenced after the expiration of said six months, the lapse of time ■ shall be deemed as conclusive evidence against the validity of such claim any statute of limitations to the contrary notwithstanding.’ ’

An action upon the policy was commenced by the plaintiff on October 3, 1895, in which an order was made on October twenty-eighth vacating the service of the summons as unauthorized and void. Subsequently and on December 26, 1895, and more than six months after the death of the insured, this action was commenced. At the close of the testimony the plaintiff asked for the direction of ■ a verdict, and the defendant moved for a dismissal on the ground that the claim was outlawed. The court directed a verdict for the plaintiff, and the defendant appeals to this court.

The motions made by the respective counsel compel the assumption that there was no question of fact to be submitted to the jury; and the only question which we are called upon to determine is whether there was evidence of a waiver by the defendant of the limitation clause of the policy. The only evidence of such waiver is the receipt and retention by the defendant of the papers above enumerated.

In Dougherty v. Metropolitan life Ins. Co. (3 App. Div. 313), this court, Mr. Justice Hatch writing, said (pp. 315, 316): “ The action was not begun within this time. But plaintiff gave evidence ’ to establish that defendant retained the proofs of loss and her other papers until after the six months had expired before they returned them to her or rejected her claim. Defendant denied this, claiming that it had rejected the claim, notified plaintiff of its rejection, and returned her papers within the six months. Upon • this testimony the court submitted the question to the jury whether defendant retained possession of the papers as claimed by plaintiff, and if so, did such, act upon their part amount to a waiver of this provision of the policy, charging that both facts must be found in plaintiff’s favor before she was entitled to recover. The evidence warranted the submission and the form of it was unexceptionable. The jury found in favor of plaintiff, and, unless some error occurred upon the trial, the judgment appealed from must be affirmed. It is claimed that the testimony of Siegrist, defendant’s agent, is ■uncontradicted that he notified plaintiff of the rejection of the claim ■by the company as early as August 17,1893. If this be true, it does not work the result claimed by defendant. It still retained possession of her policy and papers. It might well be that they rejected the claim, but it would not followfrom that, as a conclusive proposition, that it intended to insist upon its short Statute of Limitation/ Plaintiff was in no position to bring her action until she was possessed of the policy and papers; they were essential in order to prepare her complaint. It would be most reprehensible for defendant to withhold her papers, the evidence of her right to prosecute an action, and then insist that she had notice of the rejection of the claim and was absolutely concluded thereby, unless she acted before the end of the six months. Good faith required that her papers be returned as soon as defendant had acted thereon. Returning the policies after this event, and then insisting upon this •short Statute of Limitations, ought not to receive favor at the hands of the court. It has too much the ear marks of an intention to create a condition where the limitation may be availed of.”

In Sergent v. Liverpool & L. & Globe Ins. Co. (155 N. Y. 349, 355) the court said: “ It is well settled that when liability has become fixed by the capital fact of loss within the range of the responsibility assumed, in the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification. (McNally v. Phoenix Ins. Co., 137 N. Y. 389, 398.)”

The defendant’s counsel contends that Arthur v. Homestead Fire Ins. Co. (78 N. Y. 462) is authority against the maintenance •of this action. That case holds that the commencement of the first action and its successful defense does not estop the company from insisting that the second cannot be maintained because commenced too late, but this does not shake the authority of the cases .above cited upon the question of waiver.

Admittedly, the evidence of waiver in the present action was ■slight, consisting only of the acceptance and retention by the company of the papers, but within the authorities such acceptance and retention are sufficient to raise a question of fact as to the waiver of the limitation provision of the policy; and the court decided that question, as it could properly do, in favor of the plaintiff.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  