Curnen v. Law Union & Rock Insurance

brokers. The adjuster asked that this question should be held in abeyance to await the arrival from Chicago of Mr. Shaw, defendant’s general agent, who in turn submitted the affair to the home office at London. About June 23d (more than 60 days after the loss), a sworn proof of loss was served, which defendant also retained. In July, however, defendant announced that it declined any liability. Some months afterward it suggested dividing the loss with plaintiff’s brokers, and sent a check for $750 as its half; but this proposed compromise was not accepted.

The trial court, sitting without a jury, found that the building on the northwest corner of Second street and Wolf’s lane was where the property covered by the policy was intended to be insured. Further, that defendant had waived any misdescription of the insured premises. The court also found that plaintiff had performed all the policy conditions except service of proof of loss within 60 days after the fire, which had been waived by the defendant.

Upon this appeal defendant urges: (1) That the misdescription of the street corner location was fatal to plaintiff’s right to recover; (2) that the payment and receipt of the premium after the loss worked no estoppel; and (3) that defendant did not waive due service of a sworn proof of loss.

[2] There was no other house or building of any kind at this street intersection, either at the date of the last policy or at any previous time. • Hence no building other than the one where the insured effects were could have been intended. Such an inaccuracy raises a question of construction: Can the part plainly erroneous be rejected, and yet leave enough to designate the location with certainty ?

This rule of construction has frequently been resorted to in aid of clerical misdescriptions of the site -of insured buildings or of buildings containing the property to be insured. The rule of rejecting such errors, where sufficient remains to show the place intended, has been applied where the building containing the subject-matter has been described by an inaccurate street number (Westfield Cigar Co. v. Insurance Cos., 165 Mass. 541 , 43 N. E. 504 ); where a warehouse ’ containing the insured goods was described from the street number in the rear, instead of on the street where it fronted (Edwards v. Fireman’s Insurance Co., 43 Misc. Rep. 354 , 87 N. Y. Supp. 507 ); and where furniture insured was inadvertently written as on the southerly, instead of the northerly, side of a country road (Le Gendre v. Scottish Union & Nat. Ins. Co., 95 App. Div. 562 , 88 N. Y. Supp. 1012 ). Also, as here, where a street corner was denoted by a wrong compass direction. Burr v. Broadway Insurance Co., 16 N. Y. 267 . This last case raised a further difficulty, as the insured did own two buildings quite similar on the northwest and at the southwest corners of the crossing streets. Yet by eliminating from the policy “No. west," enough was left to make certain the building to which the contract related.

As mistakes in the compass direction of streets, roads, and boundary lines are frequent, this clerical error of the brokers in writing in northeast did not avoid the insurance. Where the absence of any other corner building establishes the intent beyond contradiction, the court

rightly held that plaintiff’s effects in the only frame building at this street intersection, though at the northwest corner, were intended to be insured.

[3] It was, however, urged at the trial that this inadvertence had harmed defendant, since in reliance thereon it had taken another risk of $3,500 on this residence, while its own rules for local agents limited such lines to $3,500. Its book of rules, however, did not indicate that such limitations bound in any way the general offices, nor does it appear that the limit on the contents of this building had been exceeded. Considering that fire insurance offices have local maps so as to keep track of any cumulative lines (De Noyelles v. Delaware Ins. Co., 78 Misc. Rep. 649 , 138 N. Y. Supp. 855 ), and that when this $3,500 insurance on the residence was taken in December, 1910, the defendant already had a larger line on plaintiff’s furniture by the prior policy, the duty upon defendant to investigate, and if necessary to reinsure any excess, cannot be set up to avoid liability to plaintiff. As was said of the insurer in De Cendre v. Scottish Union & Nat. Ins. Co., supra:

“If it did investigate it would have discovered the true location of the plaintiff’s residence. Had it done so within a reasonable time, and had there been any basis for claiming it had been misled to its prejudice, it might have rescinded the contract and returned the premiums.” 95 App. Div. 566 , 88 N. Y. Supp. 1012 , 1014.

[4] By defendant’s acting on the furniture schedule which plaintiff promptly furnished, and in asking to hold in abeyance the question of liability until it had been referred to London, as well as by finally retaining the sworn proof of loss without objection, it waived the policy requirement of a formal proof of loss within 60 days. Defendant’s acceptance of the premium after the loss, and after the adjuster had learned of the mistake in location, with no subsequent offer to return it to the assured, was not consistent with its position that the risk had never attached. Richards on Insurance, p. 217.

The trial court therefore rightly directed judgment for plaintiff, which should be affirmed, with costs, and I so advise.