Majority
p. 553STOEBE v. HANOVER FIRE INS. CO. OF NEW YORK. (Supreme Court, Appellate Division, Second Department. October 16, 1908.) Argued before WOODWARD, JENICS, HOOKER, GAYNOR, and RICH, JJ.
Headnote
Insurance—Fire Insurance—Proofs of Loss—Waives.Insured, in a fire policy providing as a condition precedent to maintaining an action thereon that he shall file proofs of loss, who fails to file them and does not show a waiver of the condition, cannot recover.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1323-1338.]
Appeal from Municipal Court, Borough of Brooklyn, Fifth District.
Action by Herman A. Stoebe against the Hanover Fire Insurance Company of New York. From a judgment of the Municipal Court of the City of New York in favor of the plaintiff, defendant appeals.
Reversed, and new trial ordered.
Robert J. Fox (Frederic C. Pitcher, on the brief), for appellant. Edwin F. Valentine, for respondent.
The plaintiff has recovered in an action upon a policy of insurance for losses sustained by fire. The policy provides, as a condition precedent to maintaining the action, that the insured should, within 60 days after the fire occurred file with the company sworn
p. 554
proofs of loss. It is conceded that such proofs were not filed, and the respondent’s contention to support the judgment résts upon the conduct of one of the defendant’s adjusters and his conversations with him, which it is claimed establishes a waiver of the requirement of the policy to file such proof of loss.
The evidence does not support this contention and the judgment must be reversed, and a new trial ordered; costs to abide the event. All concur.