
    James B. Sharp v. Milwaukee Mechanics’ Insurance Co.
    (Supreme Court, Appellate Division, Fourth Department,
    July 11, 1896.)
    Insurance—Prooes oe loss—Waiver.
    The insured after loss verbally notified the insurance agent, who thereupon notified the insurance company, which sent its adjuster to adjust the loss. An agreement was then entered into for the appraisal of the loss by the adjuster. The assured frequently applied to the insurance agent for blanks on which to make out proofs of loss and the agent promised to furnish them, and informed the assured that the insurance company had been notified, and that the check for the amount of the appraisal would soon be received. Afterwards and after the time limited by the policy, the assured sent proofs of loss to the insurance company, which received and retained them without objection. Held, that the provision of the policy that proofs of loss should be made within a certain time was waived.
    Appeal from judgment on report of referee.
    Action by James B. Sharp against the Milwaukee Mechanics’ Insurance Company, impleaded, on a fire insurance policy. Judgment was rendered in favor of plaintiff for $569.76 and costs, and,defendant insurance company appeals.
    On the 18th day of July, 1892, the appellant, in consideration of $3.60, paid by the plaintiff to Samuel J. Jec-oby, its duly-authorized local agent, made, executed, and delivered to the plaintiff its policy of insurance, whereby it insured the plaintiff against loss or damage by fire to the amount of $600 upon his two-story frame, shingle-roof dwelling house situated on the west side of Ttumsey street, in the village of Seneca Falls, N. Y., for three years. On the 1st day of October, 1892, the dwelling house was destroyed by fire, with-' •out any fault of the plaintiff. The referee finds: “That, immediately after said fire, the plaintiff verbally notified said Samuel J. Jacoby, the local, agent of said company, as aforesaid, who thereupon at once notified said company by telegraph and by letter of said loss. That pursuant thereto, and on or about the 10th day of October, 1892, said defendant ■sent its adjuster to Seneca Falls, to adjust said loss. That an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company, and one B. F. Peck for plaintiff; and an award in writing pursuant to said submission of appraisal, was thereupon duly made, by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and eighty dollars and thirty-four cents, which award was immediately thereafter delivered by said adjuster to said company. That the plaintiff frequently applied to said Jacoby for blanks to make out proofs of loss within the time limited by terms of policy for so doing. That Jacoby promised to furnish same, and informed plaintiff that the defendant had been notified, and that the check for the amount of appraisal would soon be sent on; and plaintiff relied upon said statements. That on the 9th day of December, 1892, and more than sixty days before the commencement of this action, the plaintiff made and executed proofs of loss in writing in due form, and properly verified, and mailed same to defendant company; and said proofs were received by it at its New York office on the 10th day of December, 1892, and have been ever since retained by said company without objection. * * * ® ’ That said defendant, Milwaukee Mechanics’ Insurance Company, by entering into said agreement of arbitration and appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of .its said policy. That the sum of four hundred eighty dollars and thirty-four cents became due and payable from said defendant to the plaintiff herein on the 7th day of February, 1890, and remains wholly unpaid.”
    The appellant filed four exceptions to matters mentioned in the referee’s report. Only two of them, however, relate to questions of law; (1) That the defendant is indebted to the plaintiff in the sum of four hundred eighty dollars and thirty-four cents; (2) that the defendant, Wayne Building, Loan and Accumulating Fund Association, has interest in said recovery to the amount of two hundred and twenty-six dollars and three cents.
    Satterlee, Yoeman & Taylor, for appellant.
    J. N. Hammond, George W. Pontius, and S. N. Sawyer for respondent.
   HARDIN, P. J.

No case containing exceptions is presented, and the only questions that can be considered are those aiusing upon the judgment roll and exceptions to the findings of law by referee. The appellant, in order to succeed, must show “that the trial court could notin any view of the facts found, properly have ordered judgment for the plaintiff.” Insurance Co. v. Barnard 96 N. Y. 525

Appellant’s defense is predicated upon the failure of the plaintiff to make proofs of loss within the sixty days mentioned in the stipulation in that regard in the policy. It must be assumed that the stipulation requiring proofs of loss to be made and filed within sixty days, is a condition precedent to the right to recover upon the policy.

“These conditions, which relate to matters after the loss,, have for their general object to define the mode in which an accrued loss is to be established, adjusted, and recovered after the reciprocal rights and liabilities have become fixed by the terms of the contract, and are to receive a more liberal construction in favor of the insured. In determining the liability of the defendant, it is entitled to the benefit of its "contract, fairly construed, and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive 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.”

In the case in hand, the appraisal agreement is not produced or set out in exact language in the referee’s report. However the referee has found, as matter of fact, viz.:

“That an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company, and one B. F. Peck for plaintiff; and an award in writing, pursuant to said submission of appraisal, was thereupon duly made by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and ■eighty dollars and thirty four cents, which award was immediately thereafter delivered by said adjuster to said company.”

Nor is that all that appears in the referee’s report which tends to indicate that there was a waiver of the restrictive language in respect to the formal proofs of loss. The referee has found as a fact that the local agent, Jacoby, informed the plaintiff that the defendant had been notified, and also promised “that the check for the amount of appraisal would soon be sent on; and plaintiff relied upon said statements. There is the further fact found by the referee,to wit, that on the 9th day of December, 1892, after the adjustment under agreement of the 10th of October, and after the adjustment as already mentioned had taken place, and the adjuster had received the award of the parties chosen to estimate the loss, formal proofs were made by the plaintiff, “in writing, in due form, and properly verified, and mailed same to defendant company; and said proofs were received by it at its New York office on- the 10th day of December, 1892, and have been ever since retained by said company, without objection.” The plaintiff is entitled to avail himself of all the facts stated by the referee, and the legitimate inferences deducible therefrom upon the question of waiver of strict performance. The construction given as to the matter of fact by the referee is made apparent by his further finding of fact, to wit:

“That said defendant Milwaukee Mechanics’ Tnsuance Company, by entering into-said agreement of arbitration and, appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of its said policy.”

Appellant is not in a situation to review the findings of fact as being against evidence or unsupported by evidence. It can only review the conclusion of law pronounced upon the facts stated in the report of the referee, as we have already intimated.

In Lowry v. Insurance Co., 32 Hun, 329, the policy contained the usual clause requiring proofs of loss to be given and verified, and no proofs of loss were ever sworn to or rendered by the party insured; “but evidence was given tending to show that his failure to make and serve them was caused by the statement and acts of one McCurdy, an agent of the company, and that McCurdy had authority to waive the presentment of formal proofs of loss, and intended to -waive them in this case.” That case was affirmed by the ■court of appeals in April, 1885. See 105 N. Y. 646.

Appellant calls attention to Walker v. Insurance Co., 89 Hun,331, G9 St. Re.p 817, which involved several questions relating to the restrictive clause in an insurance policy, and in that case it was said: “It is clear that the policy net er took effect.” That case differs essentially from the one before us, and we think nothing is found-in the opinion inconsistent with the views already expressed herein.

We think the conclusion of fact reached by the referee that the defendant had “waived the earlier furnishing of same, as required by the terms of its said policy,” and the finding of fact that the amount of the said policy became due before the commencement of this action, and remains-wholly unpaid, Avar ranted the eon elusion of kvw that the appellant “is indebted to the plaintiff,” as stated by the referee.

The foregoing vievva lead to the conclusion that the report of the referee should remain in force. Judgment, affirmed., with costs. All concur.  