
    Thomas Perry, Respondent, v. Caledonian Insurance Company, Appellant.
    
      Mre insurance policy — breach of a condition against other insurance, not indorsed thereon — what promise by the agent to make an indorsement is not binding on the company —• waiver of service of proofs of loss —■ ivhat agent may and who may not waive it — effect of their retention by the company, when served after the period fixed by the policy — what is essential to an estoppel.
    
    Where the holder of a standard policy of fire insurance, which provides that it shall be void in case other insurance on the insured property is obtained without an express permit indorsed upon the policy, and that no agent shall have power to waive any provision or condition of the policy except such as may be added thereto in writing, deposits such policy in the safe of a friend doing business in the vicinity of the office of the agent of the insurance company, and thereafter, upon obtaining other insurance upon the insured property, instead of delivering the policy to the agent for indorsement, relies upon the promise of the agent to go to the place of deposit and make the proper indorsement upon the policy, he does so at his peril, and if the agent neglects to perform such promise the insurance company is not responsible for his failure, nor is it estopped by his promise from repudiating liability upon the policy.
    Unless waived, the furnishing of proofs of loss, as stipulated by the terms of a standard policy of fire insurance, is a condition precedent to the maintenance of an action upon such policy.
    
      The fact that an agent of the Are insurance company, who did not have authority to adjust the loss, informs the insured, of his own motion, that the policy is void, does not constitute a waiver binding upon the insurance company of the provision of the policy requiring the furnishing of the proofs of loss.
    
      Semble, that the rule would be different if the agent had power to adjust the loss, or if a person having authority to adjust the loss, in addition to telling the agent that the policy was void and the company would not pay, had directed the agent to communicate these facts to the insured.
    The retention by the insurance company, under such circumstances, of proofs of loss served after the expiration of the time stipulated in the policy for such service does not constitute either a waiver or an estoppel which will prevent the insurance company from insisting that the insured was not entitled to recover on the policy.
    In order that an insurer under a standard Are policy shall estop itself, some of the elements of an estoppel must exist; the insured must have been misled by some act of the insurer, or it must, after knowledge of breach, have done something which could only be done by virtue of the policy, or have required something of the insured that he was bound to do only under a valid policy, or have exercised a right which it had only by virtue of such policy.
    Appeal by the defendant, the Caledonian Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 29th day of October, 1903, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, certain questions of fact having been submitted to a jury, and also from an order entered in said clerk’s office on the 27tli day of October, 1903, denying the defendant’s motion for a new trial made ujDon the minutes.
    
      Charles F. Mathewson and Harry S. Sleicher, for the appellant.
    
      Lewis E. Griffith, for the respondent.
   Houghton, J.:

On the lOtli of January, 1900, the defendant issued a standard fire insurance policy to the plaintiff, insuring certain personal property against loss by fire. The policy contained no provision permitting othey insurance, and provided that it should be void in case other insurance was obtained without an express permit indorsed thereon. On the first day of February following the plaintiff obtained other insurance upon the property without obtaining such permission. On the twenty-third of April following the property was totally destroyed by fire, and on the twenty-eighth day of June, sixty-five days thereafter, the plaintiff served sworn proofs of loss upon the defendant. The policy contained a provision that in case of fire such proofs of loss should be furnished within sixty days, and upon failure no action on the policy should be maintainable for the recovery of any claim thereunder, and the further stipulation that no agent of the company should have power to waive any provision or condition of the policy except such as might be added thereto in writing.

For safety the plaintiff had deposited his policy in the safe of a friend doing business in the vicinity of the office of the agent of the defendant, and he seeks to avoid the effect of the provision requiring written permission for additional insurance to be indorsed upon the policy by proof that he notified the agent prior to his obtaining the second policy that he was about to obtain it, and that the agent assented thereto and agreed to call at the place of deposit and make the proper indorsement tliereon. The trial court found that the failure of the agent so to do was in effect the failure of the defendant company, and that it was estopped from claiming a forfeiture upon that ground. '

The failure to furnish proofs of loss within the sixty days provided by the policy is sought to be excused because the agent of defendant told the plaintiff that his policy was void and uncollectible because it did not contain the required indorsement. The trial court found that this statement was in effect a notice to plaintiff that proofs of loss need not be furnished.

In both these propositions we think the learned trial court was in error.

Under a standard policy of fire insurance containing express stipulations with respect to the authority of agents, it being within the power of the insured to produce the policy for written indorsement permitting additional insurance and it not being produced, an oral promise by the agent that he will attend to it is his individual promise and is not binding upon the company. (Baumgartel v. Providence-Washington Ins. Co., 136 N. Y. 547; Gray v. Germania Fire Ins. Co., 155 id. 180; O'Brien v. Prescott Ins. Co., 134 id. 28.)

The respondent insists that his proofs bring him within the principle of Manchester v. Guardian Assurance Co. (151 N. Y. 88). In that case the property had been conveyed and it was desired that the insurance he transferred to the new owner. The policy was in the possession of a mortgagee and not under the control of the insured. A promise of the agent to go and make the proper transfer was held binding, not only upon the ground that the insured could not produce the policy, but upon the ground also that there was a virtual contract to reinsure the grantee of the premises. The Baumgartel case is referred to and approved and held not to apply to the situation there involved.

In the present case the j>olicy was under the control of the insured. He could produce it for indorsement at any time, and we think he relied at his peril upon the promise of the agent to go to its place of deposit and make the proper indorsement. If the agent had done it the company would have been bound. He having failed to do it the company is not responsible for his failure nor estopped by his promise.

With respect to furnishing proofs of loss the agent could not bind the company. He was not authorized to adjust the loss. To another, a Mr. Hibbs, was delegated that duty. If the adjuster had told the plaintiff that the policy was void and that the company would not pay, this might well have led the plaintiff into not furnishing them. Such was held to be the effect in Smaldone v. Ins. Co. of. North America (15 App. Div. 232) and Flaherty v. Continental Ins. Co. (20 id. 275). The sole finding is that this statement was made to the agent. It is sought to be given effect because the adjuster told the agent that the policy was void and the company would not pay. If the adjuster had directed the agent to communicate that fact to the plaintiff it might have had the same effect as a statement by himself. But the adjuster testifies that he gave no such direction, and hence whatever may have been said was without his authority.

Unless waived, the furnishing of proofs of loss as stipulated by the policy is a condition .precedent to the maintenance of an action. (Peabody v. Satterlee, 166 N. Y. 174; Quinlan v. Providence-Washington Ins. Co., 133 id. 356.)

It is urged that the retention of the proofs of loss and failure to return them was a waiver of earlier service, and that the defendant is now estopped from claiming that they were not regularly served. We do not think this position is tenable. Silence operates as an assent and creates an estoppel only where it has the effect to mislead. (More v. New York Bowery Fire Ins. Co., 130 N. Y. 537.) The plaintiff was in no way misled by the retention of the proofs of loss. His rights were gone before he attempted to serve them. His position was made no different because the company ignored his statement or failed to inform him that his proofs of loss were not properly furnished. In order that an insurer under a standard fire policy shall estop itself some of the elements of an estoppel must exist; the insured must have been misled by some act of the insurer, or it must, after knowledge of breach, have done something which could only be done by virtue of the policy, or have required something of the insured that he was bound to do only under a valid policy, or have exercised a right which it had only by virtue of such policy. (Gibson Electric Co. v. Liverpool & L. & G. Ins. Co., 159 N. Y. 418.)

From the record we see no escape from the conclusion that the plaintiff forfeited his rights under the policy by his failure to obtain 'the indorsement permitting additional insurance to be properly made, as well as by his failure to furnish his proofs of loss within the prescribed time. The evidence did not justify the finding of fact that a contract, binding upon the company, was made by the agent to make the proper indorsement upon the policy, and the other findings did not justify the conclusion of law that the defendant was estopped and liable for the amount of the policy.

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred ; Chase, J., in result.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event.  