
    Fred E. Pierce, Appellant, v. Sun Insurance Office, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Insurance (fire) — action on policy to recover loss of rental during time necessary to rebuild — question as to who is disinterested appraiser — trial — appeal.
    Where a fire insurance policy in substance provided that in case of disagreement the amount of loss should be determined by “ two competent and disinterested appraisers,” each party to select one, their difference, if any, to be submitted to an umpire and the award of any two of such three to determine the amount of loss, and on the trial of an action on the policy to recover loss of rental during the time necessary to rebuild after a fire it appeared that the parties having failed to agree as to the amount of loss defendant by letter demanded an appraisal and named S. as “ their appraiser,” hut plaintiff, who did not reply to the letter, called S. as a witness and proved by him that he was a general contractor; that he did work for insurance companies and had been doing so for some twenty years; that he had acted as appraiser for defendant and other insurance companies, and that the largest part of his time was spent in doing work for insurance companies, for which he received compensation, the question as to whether S. was a disinterested appraiser within the meaning of the policy was a question of fact for the jury under proper instructions from the court, and the dismissal of the complaint on motion of defendant at the close of plaintiff’s case was reversible error.
    
      Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant after a trial before the court and a jury.
    Rollins & Rollins (Pulton J. Redman, of counsel), for appellant.
    Alexander & Creen (William C. Prime, of counsel), for respondent.
   Pendleton, J.

The action was brought on an insurance policy against fire for the loss of rental during the time necessary to rebuild. The complaint, after the allegation as to the issuing of the policy, the fire and destruction of the property, alleged that the loss was $250, and that plaintiff had performed all the conditions on his part to be performed,' and that sixty days had elapsed after notice and proof of loss. The answer denied that plaintiff had performed the conditions on his part to be performed and alleged, after setting forth the provisions of the policy, that defendant; had notified plaintiff it desired an appraisement, and appointed an appraiser, to which no answer was made by plaintiff; and further alleged that under the policy no loss was payable until after sixty days after proof of loss, including an award by appraisers, when appraisal had been required.

The policy, in substance, provided that if the parties did not agree as to the amount of loss payable it should be' determined by ‘ ‘ two competent and disinterested appraisers,” each party to select one; if they failed to agree their differences to be submitted to an umpire, the award of any two of such three to determine the amount of the loss. It appeared at the trial that the parties, having failed to agree as to the amount of loss, defendant, by a letter, demanded an appraisal and named one Shorer as their appraiser.” To this letter plaintiff made no reply. Plaintiff called Shorer as a witness and proved by him substantially that he was a general contractor; that he did work for insurance companies and had been doing so for some twenty years; that he had acted as appraiser for defendant and other insurance companies, and that the largest part of his time was spent in doing work for insurance companies, for which he received compensation. Plaintiff also gave evidence as to the amount of loss and rested. On defendant’s motion the complaint was dismissed and plaintiff excepted.

The dismissal of the complaint was error. On the evidence submitted, the question as to whether the appraiser appointed by defendant was a disinterested appraiser, within the meaning of the policy, was a question of fact for the jury, under proper instructions from the court. Meyerson v. Hartford Fire Ins. Co., 17 Misc. Rep. 121; Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137; Kiernan v. Dutchess County Mutual Ins. Co., 150 id. 190, 199. It is urged, however, that plaintiff should have objected to the appraiser at the time and appointed one on his own account, and that, not having done so, he cannot raise the question now. This manifestly proceeds on the assumption that in not doing so plaintiff committed a breach of the contract. This depends on whether there had been a prior breach by defendant. If defendant had already violated the provisions as to appraisal plaintiff was absolved from complying therewith (Uhrig v. Williamsburg City F. Ins. Co., 101 N. Y. 362), and plaintiff was entitled to bring suit on the policy and recover the amount of loss to be proved at the trial. Bishop v. Agricultural Ins. Co., 130 N. Y. 488. Whether or not defendant had violated the provisions of the policy as to the appointment of appraisers depended on whether Shorer was a disinterested appraiser. That was a question of fact to be left to the jury with the other facts in the case, under proper instructions by the court.

Guy and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  