
    Francis A. Hess et al., App’lts, v. The Washington Fire & Marine Insurance Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    LcTSUBAiTCE (fibe)—Otheb insubaxce—Waiveb.
    The policy in question provided that it should be void if other insurance was obtained unless agreed to in writing thereon, and that “ no agent has power to waive any condition of this contract.” Defendant reinsured its risks, and the agent ceased to do business for it except under special direction. Subsequently such agent, in behalf of another company, issued to plaintiff a policy on the same property, but his attention was not called to the policy in suit, and he made no endorsement thereon. Held, that the provision as to further insurance was not waived, and chat no recovery could be had.
    Appeal from a judgment entered in Monroe county, February 27, 1890, on the report of a referee, dismissing the plaintiff’s complaint upon the merits.
    
      George F. Yeoman, for app’lts; W. M Cogswell, for resp’t
   Macomber, J.

This action was brougnt to recover upon a fire insurance policy of $2,000 issued by the defendant May 15, 1886, insuring property then owned by Marvin S. Hess, situate in Niagara county, subsequently transferred by him to the plaintiff Francis A. Hess. The other plaintiff is a mortgagee of the house and premises.

Sundry defenses were interposed to the plaintiffs’ right of recovery, but the one which prevailed at the trial before the referee was that the policy of insurance had become void by reason of the procurement by the owner of the property of other insurance on the buildings without the written consent of thejlefendant endorsed on the policy. By the terms of this policy, it was provided and agreed that, unless specifically agreed to in writing in or upon the policy, the existence or subsequent procurement of other insurance upon the property so insured should avoid the contract. It was further agreed therein thatil no agent has power to waive any condition of this contract.”

This contract of insurance was secured through the agency of one Herve Sanford, who had been appointed the defendant’s agent for the purpose of receiving proposals and making insurance in its behalf in the town of Wilson and vicinity, in the county of Miagara; and he was authorized to fix the rates of premiums upon such insurance, to receive moneys, and to countersign and issue, renew and consent to the transfer of policies of insurance signed by the president and attested by the secretaiy of the company, subject to its rules and regulations, and to such instructions which might, from time to time, be given him by the officers of the defendant.

At the time of issuing the policy in question, Sanford, as the agent of the .¿Etna Fire Insurance Company, issued to Marvin S. Hess a policy in the last named company in the sum of $1,600, upon the same property, making a total insurance thereon of $3,600. Prior to this time the property had been insured by Hess in the sum of $4,000; but at the time mentioned, Mr. Hess, though importuned by the agent of these companies to continue that amount of insurance, declined to do so. On the 20th of February, 1888, the plaintiff, Hess, who had become the owner of the premises, procured other insurance, through the same agent, in the sum of $400 from the Continental Insurance Company, the amount of which after the loss by fire was paid to her. The allowance of such subsequent and additional policy was not endorsed or agreed to in writing, in or upon the policy issued by this defendant. The loss by fire, which occurred March 21, 1888, was greater in amount than $4,000.

Prior to this time, and on the 3d day of January, 1888, this defendant, having reinsured its risks in the State of Mew York with the Niagara Insurance Company, notified Sanford of that fact, and instructed him to do nothing further until hearing from the manager of the company. From that time Sanford ceased to issue policies for the defendant and did no business for it after-wards, unless, perhaps, by special direction, he settled a small loss for it, and also by a permission from the defendant, given in particular cases, he cancelled policies, but he ceased to do business for the defendant except under special direction or permission.

At the time that Sanford, in behalf of the Continental Insurance Company, issued the $400 policy to the owner of the premises, his attention was not called to the policy issued by this defendant, and he made no endorsement upon the policy consenting to such additional insurance. Ho notice of such additional insurance was given to ,the company. The claim is now put forth that Sanford had the power to and did actually, though not otherwise than as above stated, waive the provisions of the policy against additional insurance, and that, consequently, the defendant is obligated to pay the amount thereof.

It seems to us, however, as it did to the learned referee, that the provision in the policy touching further insurance, and the power of Sanford, as the agent of the defendant, to waive such provision, is governed by the case of Walsh v. Hartford Fire Ins Co., 73 N. Y., 5. In that case the policy of insurance contained a condition declaring it void in case the premises insured should become vacant for more than fifteen days without notice to the company, and consent endorsed on the policy ; and also a provision that no officer, agent or representative of the company should be held to have waived any of its conditions unless such waiver was endorsed thereon in writing. The house remained vacant for more than fifteen days. But on the day it was vacated the general agent of the defendant was notified, and was asked to consent thereto, which he did, and, upon being asked if it was necessary to have the consent endorsed upon the policy, replied that it was not, that it was endorsed upon his book, ar.d was all right. The agent did, in fact, make a memorandum of consent in Ins register, but no endorsement was made upon the policy, and no report was made to the company of the application, or the giving of such consent for such additional insurance. It was held that the evidence failed to show a valid consent or waiver of the condition, and that, consequently, the plaintiff was properly nonsuited; and, further, that although the agent had apparent authority to consent, and, in the absence of a special restriction, to waive the condition in the policy, yet as the mode of giving consent was specified, and the power of the agent to waive such condition was limited to an endorsement by him on the policy, which limitation the plaintiff was presumed to have known, his oral consent or waiver was inoperative, and did not bind the defendant.

The force of this decision has not been lessened, nor its application restricted, by any subsequent case, so far as we know, but, on the contrary, as an authority, it has been cited with approval and followed in a variety of succeeding cases, among which are Steen v. Niagara Fire Ins. Co., 89 N. Y., 326-7; Marvin v. Universal Life Ins. Co., 85 id., 278.

In the case of Goldwater v. Liverpool & L. & G. Ins. Co.,. 39 Hun, 176, there was not a limitation upon the powers of the agent respecting his ability to waive any condition of the contract, and hence that decision is in no respect opposed to our present conclusion.

The judgment appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur.  