
    The Washington Marine Insurance Company, plaintiffs, vs. Leon Herckenrath et al. defendants.
    1. Where a policy of insurance provides for payment, by the insurers, “in case of loss, in thirty days after proof of loss,” &c. service of proof of loss, and the expiration of thirty days thereafter, are conditions precedent to a right of action upon the policy.
    2. And if, in an action by the insurers, upon a premium note, the defendants, admitting the allegations of the complaint, set up as a counter-claim a loss occurring under a policy issued by the plaintiffs, but give no evidence tending to show that any proof of loss was ever served, the counter-claim should be disallowed.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 5, 1865;
    decided June 24, 1865.
    This action was brought upon a premium note made by the defendants for the sum of $150, which had been written against to the amount of the claim made by the plaintiffs, $122.75. The answer admitted “ the several allegations of the plaintiffs’ complaint,” but also set up a counter-claim that the plaintiffs on the 23d June, 1863, under an open policy for $10,000, had accepted a risk of a shipment by bark “ Texana ” to the amount of $325 ; and that said bark, with her cargo, had been captured and destroyed. To this counter-claim there was a reply, &c. The case came on for trial before one of the justices of this court and a jury, and resulted in a direction by the learned judge that the jury should find a verdict for the plaintiffs for their claim and interest, and that the exceptions taken by the defendants should be heard in the first instance at the general term, &c. &e.
    
      
      E. A. Doolittle, for the plaintiffs.
    
      J. Buchanan Henry, for the defendants.
   By the Court, Moncrief, J.

The plaintiffs were entitled to a verdict, unless the defendants established a counter-claim ; the allegations in the complaint were expressly admitted. The defendants had averred the acceptance of a risk by the plaintiffs, the happening of a loss, and that the defendants duly fulfilled all the conditions of said policy of insurance on their part; and more than thirty days before the commencement of this action they gave to the plaintiffs due notice and proof of the loss aforesaid,” &c. &c. The policy provided for payment, “• in case of loss, in thirty days after proof of loss,” &c„ The defendants having failed to establish the giving proof of loss to the plaintiffs, before the commencement of this action, the counter-claim was premature, and could not be entertained. (Kimball v. The Hamilton Fire Ins. Co., 8 Bosw. 495.) Assuming, therefore, that the defendants had given evidence proper to be submitted to the jury upon the question whether or not the plaintiffs had accepted the risk specified as a counter-claim, as to which however there is great doubt, a condition precedent to a right of action was the service of proof of loss upon the .plaintiffs and the expiration of thirty days thereafter. The defendants gave no evidence tending to show that proof was given at any time, and their counter-claim was properly dismissed by the direction to the jury to find a verdict for the plaintiffs.

Whether or' not the questions which were allowed under objection and exception by the defendants were proper and relavant as tending to show that no valid and subsisting insurance upon the subject matter of the counter-claim was effected by the defendants with the plaintiffs, need not be considered. Even if the questions were objectionable, the defendants suffered no injury by their being allowed. None of the exceptions being well taken, they should be overruled, and judgment upon the verdict directed to be entered for the plaintiffs.  