
    George N. Wilber, Resp’t, v. The Williamsburgh City Fire Insurance Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    Fire insurance—Denial of liability by reason of cancellation of' POLICY EXCUSES PRESENTATION OF PROOFS OF LOSS.
    This action was brought to recover on a fire insurance policy. The defense was that the policy was cancelled previous to the loss. The policy was procured through insurance brokers, to whom the insured paid the premium. The premium .did not reach the defendants, and the policy was cancelled for non-payment thereof. The jury found upon the trial that the payment of the premium to the broker was a valid payment to the defendant. Held, that the defendant having based its refusal to pay upon the cancellation of the policy, the plaintiff was thereby excused from presenting proofs of loss.
    Appeal from a judgment entered upon a verdict rendered at a circuit court in Kings county, and from an order denying a motion for a new trial.
    
      Robinson, Scribner & Bright, for app’lt; A. C. Aubery, for resp’t.
   Dykman, J.

—This is an action for the recovery of loss by fire under a fire insurance policy issued by the defendant, and the defense was the cancellation of the policy previous to the loss. The policy was procured through insurance brokers, to whom the insured, paid the premium, but it did not reach the defendant, and the policy was cancelled for non-payment of the premium.

Whether the premium was paid or not depended upon the validity of the payment made to the broker, and that fact was found against the defendant by the jury.

With that fact against the defendant, the cancellation of the policy was vain and ineffectual so long as the premium was retained.

The presentation of proof of the loss was waived or rendered unnecessary by the action of the officers of the defendant when notification of the loss was first made, for at' that time the refusal of the company to pay was based entirely upon the cancellation of the policy, and all liability was denied. The presentation of proofs of loss after that would have been an idle ceremony, and therefore unnecessary.

We have examined all the exceptions and find no error.

The judgment and order denying a new trial should be affirmed.

Barnard, P. J., and Pratt, J., concur.  