
    Charles S. Hirsch et al., Respondents, v. The Fidelitas Societe Anonyme D’Assurances and DeReassurances, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Insurance: Avoidance of policy — Policy of insurance on property — Warranties — Representations as to immaterial facts — Representations as to other insurance; Estoppel, waiver, or agreement affecting right to avoid or forfeit policy — Request for and acceptance of proofs of loss.
    Where, in an action against a fire insurance company, not authorized to do business in this State, upon a policy issued by its agent, licensed under section 137 of the Insurance Law, with full knowledge of the subject of insurance and without inquiry as to the names .of the four companies upon the risk authorized to do business in this State, the evidence shows that the placer of the agent of the insured made a mistake in the names of two out of the four companies, when he went to secure the binder and upon request of defendant’s agent attempted to give their names so as to enable the defendant’s agent to ascertain whether there were three ad mitted companies on the risk; that defendant’s agent received notice of loss and a list of insurance on the risk in which the mistaken names did not appear and asked for and retained thd^proofs of loss without objection and that the policies were delivered two days after defendant had notice that the companies in whose names the placer had been mistaken were not upon the risk, any rights that the defendant might have had upon a claim of misrepresentation as to the companies on the risk had been waived.
    The policy being in the standard form and containing no warranty, the statement of the placer of the names of the companies was not a warranty by the insured. . .
    Appeal by the defendant from a judgment in favor of the plaintiffs/ rendered in the Municipal Court of the city of Hew York, first district, borough of Manhattan.
    William D. Murray, for appellant.
    William B. Ellison, for respondents.
   Gildersleeve, J.

The plaintiffs, being mortgagees of insured property in excess of the total insurance, recovered judgment in the Municipal Court in the sum of $558.02, damages and costs, under a fire insurance policy. The facts admitted by the defendant made out a prima facie case for the plaintiffs and called for the introduction, by the defendant, of proof establishing facts that would avoid the defendant’s liability. Of the defenses alleged the defendant undertook to prove two, viz.: (1) False representations by the agents of the insured in respect of the names of the companies who were upon the risk at the time the application for the policy in question was made to the defendant’s agent, and as to the total amount of insurance outstanding at the time; and (2), that the policy was avoided because the property was incumbered by a chattel mortgage without the consent of the company indorsed on the policy. In the opinion of the learned trial justice the defendant failed to establish either of these defenses. We think he was right. The evidence shows that the policy was issued with full knowledge of the mortgage and its character. The principal defense urged seems to be the alleged misrepresentations as to the companies already on the risk. It is true that the placer of the agent of the insured, when he went to the defendant’s agent to secure the binder, at the request of defendant’s agent to give the names of three admitted companies on the risk, wrote down, on the printed form, the names of four companies, two of which, the “¡North River” and “ Empire Oity,” were not at the time on the risk. The placer was mistaken in the names of the companies. As a matter of fact, however, four admitted companies were at the time upon the risk. It appears that the insurance in question is what is known as surplus line insurance, procured from companies not authorized to do business in the State, and that it is done under section 131 of the Insurance Law. (L. 1892, ch. 690, as amd. L. 1894, ch. 611.) The defendant company was not admitted to this State, had no maps or surveys, and its agents relied upon the fact that admitted companies had written risks. It would seem, from the testimony, that the purpose of this inquiry was to ascertain whether or not there were upon the risk three admitted companies. The names were not important and cannot be truthfully said, in the light of all the evidence, to have constituted any inducement. In point of fact the defendant’s liability was not enlarged by the errot neons statement of the placer that the Worth River and Empire City companies were on the risk. This representation was not a warranty by the assured. The policy here is in the standard form and contains no such warranty. The error in names worked no injury to the defendant. It was with the defendant to show that the representation affected the subject of insurance in some material and substantial way. This it failed to do. Brooks v. Erie Fire Ins. Co., 76 App. Div. 275. Could it be properly said that any of defendant’s objections to the judgment on the ground of misrepresentations, were well founded ? We are of the opinion that it waived any rights it may have had. The defendant was represented in New York city by Messrs. Tileston & Co. The evidence showed that Mr. Tileston accepted the .insurance from the agent of the insured without conditions, with full knowledge of the subject of insurance and without inquiry as to the names of the companies already on the risk. It was not until the placer went to defendant’s agent to get the binder that any names of admitted companies upon the risk were asked for. Mr. Tileston received, in behalf of defendant, as he was authorized to do, notice of loss and a list of insurance on the risk, in which risk the names oft the “Empire City” and “ Worth River” companies did not appear; asked for proofs of loss; promised to pay promptly upon receipt of proofs, and received and retained the same without objection.

It also appears clearly, by uncontradicted evidence, that the defendant delivered its policies to plaintiffs’ agent two days after the defendant had notice that the Worth River and Empire companies were not on the risk. This fact is conclusive of defendant’s liability, unless defendant shall be relieved by some other defense.

The judgment is affirmed, with costs to the respondents.

Davts and Clinch, JJ., concur.

Judgment affirmed, with costs to respondents.  