
    St. Paul Fire and Marine Insurance Company, Appellant, v. Phœnix Assurance Company, Limited, Respondent.
    Fourth Department,
    October 5, 1932.
    
      
      Carleton J. Townsend, for the appellant.
    
      Hugh McM. Russ, for the respondent.
   Per Curiam.

The action is brought upon defendant’s written policy — not upon a claimed oral contract or a binder ” contract. The policy was not countersigned by the duly authorized agent at Niagara Falls until the day after the fire. Since the policy provides that it shall not be valid until thus countersigned no contract binding the defendant ever went into effect for the reason that the policy was neither made a complete contract nor delivered until after the fire. The delivery of the policy by defendant’s agent, the Niagara Falls Fire Office, cannot be held to have created a waiver by defendant of any claim based upon the absence of a counter-signature, since no information or knowledge as to the fire was in the possession of defendant or its agent until after delivery of the policy.

All concur, Sears, P. J., not sitting.

Judgment affirmed, with costs.  