
    Mary A. McCoubray, Respondent, v. St. Paul Fire and Marine Insurance Company, Appellant, Impleaded with Others.
    
      Fire insurance policy — refoi'mation of, and recovery of a loss under, where it has i)een mage out in the wrong name through the mistake of tits agent—waiver of service of proofs of loss.
    
    Where a husband, on behalf of his wife, delivers to an insurance agent an insurance policy issued to the wife, upon property belonging to her, and requests him to make out a new one in “the same form, the same name and the same amount,” and the agent issues the new policy in the name of the husband, and, upon being notified of the mistake, promises to rectify it, but neglects to do so until after a loss occurs, the wife may maintain an action for the reformation of the policy and to recover the amount of the loss under the reformed ■ policy.
    An offer by an insurance company to pay a loss under a policy, without the service of proofs of loss, operates as an irrevocable waiver of its right to demand such service.
    Appeal by the defendant, the St. Paul Fire and Marine 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 Orange on the 22d day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Orange Trial Term.
    
      William D. Murray, for the appellant.
    
      W. F. O’Neill, for the respondent.
   Goodrich, P: J.:

The action is brought to reform a policy of fire insurance issued by the defendant and to recover the amount of the policy as reformed. The policy in question insured the husband of the plaintiff, for three years, against loss by fire to the amount of $1,400 on a frame dwelling and $100 on a barn, both situated in Wurtsboro, Sullivan county, loss, if any, first payable to mortgagee as interest may appear. The property was owned by the plaintiff and had been previously insured in her name by the Nassau Insurance Company, through J. E. Winter, an insurance agent at Bloomingburgh, who is the person named in the present policy as the agent of the defendant company whose signature was required to validate the policy.

At the time of obtaining the policy, Joseph McCoubray, the plaintiff’s husband, handed Winter the Nassau policy and told him to make out one in the defendant company, in “the same form, the same name and same amount.” Winter sent the policy to Joseph, who said that it was wrong, as the insurance had always been in his wife’s name, and asked him to have the change made. In procuring the insurance and in the subsequent proceedings, Joseph was acting for his wife. On several later occasions Joseph asked Winter to correct the policy and gave it to him for that purpose, but it was never changed. The property was destroyed by fire on May 10, 1897. McWilliams of Middletown, a general agent of the company, called upon Joseph about June 5, 1897, when the matter of correction was again mentioned and. a rough estimate of the loss was made. On June tenth, McWilliams again called and offered to pay the loss at $1,042, which was refused. There was some conversation at the last interview also in respect to proofs of loss, Joseph saying to McWilliams that he would get some one to make out the proofs of loss and serve them, and he was told by McWilliams that he need not do so; that if he was dissatisfied with the appraisal the company would make out a new one. On June fifth, Joseph, in his own name, and the company, through its general agent, Mr. Whiton, made an agreement for the submission to appraisers of the question of the amount of' loss, and the damages were appraised on June seventeenth, at $1,042.29.

McWilliams testified that he prepared proofs of loss which were produced on the trial, but they do not seem to have been signed by the plaintiff or her husband. There was other evidence on behalf of the plaintiff, tending to show that she did not know the policy was issued in her husband’s name instead of her own; that she never authorized him to enter into any agreement for the appraisal of the property, and that she told McWilliams that she would not stand by it at all, because there was an error in it and she would not accept the amount that was in.” McWilliams testified that he did not know that the property belonged to the wife before the day on which he went to get the proofs of loss signed.

It is evident, on uncontroverted proof, that Winter, the local agent of the defendant and the one through whom the policy was obtained, was informed when it was issued that the property belonged to the plaintiff and was instructed to make out the policy in her name; that when his attention was called to the erroneous use of Joseph’s name he promised to have the error corrected, and that that promise was made on several subsequent occasions. In such circumstances equity requires the reformation of the policy, all the more that the policy, as usual, was drawn by the defendant (Hay v. Star Fire Ins. Co., 77 N. Y. 235); and this is true even after the occurrence of a loss. (Van Tuyl v. Westchester Fire Ins. Co., 55 id. 657.) On the evidence the court was justified in finding that the plaintiff was entitled to a reformation of the policy and to a finding that the amount of damage was $1,042.29.

The defendant claims that there was no waiver of service of proofs of loss. The evidence already cited, together with the letters from Whiton, the general manager of the company in New York, is sufficient to establish such waiver. One of such letters, was dated June eighteenth and addressed to McWilliams’ firm ; it stated that the appraisal had been made at the amount already referred to ; that proof of loss was inclosed, and that when it was made up in proper shape and returned the loss would be paid. But as the company, through McWilliams, had previously and on the tenth of June offered to pay the amount of the award without proof of loss, .the evidence is sufficient to establish a waiver of such proof. The waiver, having’ been made on the tenth of June, cannot be recalled by the company.

We see no reason to differ with the finding and decision at Special Term, and the judgment should be affirmed.

All concurred, except Hieschbebg, J., not sitting. •

Judgment affirmed, with costs.  