Harrington v. Franklin Fire Insurance — 49 N.Y. St. Rep. 138

Majority

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John E. Harrington, App’lt, v. The Franklin Fire Insurance Co., Resp’t.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Insurance (fire)—Waiver of conditions.

After a conveyance of property insured the owner notified the agent of the company,who thereafter renewed the policy, and informed the mortgagee that it was all right. After the fire and after proofs of lo s were furnished, the company called for additional proofs, without mentioning any claim to a forfeiture. Held, that this constituted a waiver of a cause of forfeiture on the ground of change of title.

Appeal from judgment entered upon a verdict directed by Mr.. Justice Osborn at the circuit

Action to reform a policy of insurance, and to recover a loss.

The policy was issued to Timothy Cooney, and bears date April 7, 1871. It was filled out above the signatures of the president.

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and secretary and countersigned on that date by Hiram Roosa, agent, and it is stated in the policy, above the signature of the officers, that Hiram Roosa was the agent of the company, and that the policy was not valid until countersigned by him.

The amount of insurance was “$1,600 on his (Cooney’s) two- and-a-half story and basement 22x30 frame and shingle roof building,” and $400 on his furniture, family clothing, etc., and by the terms of the policy the defendant is to be “liable to pay, make good and satisfy unto the said insured, his heirs, executors, administators or assigns, all such damage or loss which shall, or may happen by fire to the property above mentioned.”

On the first day of November, 1870, the said Timothy Cooney executed to the plaintiff his bond for $1,000, secured by a mortgage upon the premises in question. On the 26th day of September, 1873, Cooney, through Patrick Burns, transferred the premises in question to his wife, not being prohibited by his policy so to do.

Of this transfer the plaintiff had no knowledge, but Cooney told Roosa, the general agent of the defendant, “ three or four ■days ” after it was made.

On the 7th day of April, 1874, the general agent, Roosa, with full knowledge of the transfer (having certificates signed in blank by the officers), filled out, countersigned and delivered a renewal ■of the insurance for three years more.

Subsequently, on the 22d day of April, 1874, Cooney executed "to the plaintiff his bond for $500, secured by a mortgage upon the same premises.

Immediately thereafter Cooney agreed to have the plaintiff’s mortgage interest protected by the insurance, and went to Roosa, the general agent of the defendant, and told him he “ wanted to give Harrington (the plaintiff) a claim on the policy,” to secure his mortgage interest, and Roosa said he would put it down so; and actually made an entry in the books of the defendant, “ Loss, if any, payable to John E. Harrington, as his interest will appear,” ■and through illness or mistake failed to make any entry thereof on the policy or on the renewal attached to the policy. The date and full particulars of the agreement to protect the«plaintiff’s mortgage interest, and of his (Roosa’s) knowledge of the previous transfer by ■Cooney to his wife, do not appear, because Roosa had died, and the defendant refused to produce- its books upon the trial, but from this refusal it is fair to presume that Roosa had made an entry thereon of the transfer by Cooney to his wife, and of fuller particulars of the agreement to protect the plaintiff’s mortgage interest. Some time after the renewal, Roosa became insane, and his agency and books were transferred by the defendant to William H. Fredenburgh.

The plaintiff and Cooney then called upon Fredenburgh to see if the plaintiff’s mortgage interest was protected, and after discussing the full particulars thereof, Fredenburgh, as agent of the defendant, assured the plaintiff that the insurance was sufficient to ■protect his mortgage interest, and wrote on the policy and renewal attached thereto, “ This policy is all right. (Signed) William H.

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Fredenburgh,” meaning thereby that it was “ all right ” to protect the plaintiff’s mortgage interest, for that was the whole object and purpose of the interview.

The building was totally destroyed by fire on the 28th of September, 1876. Cooney assigned his interest in the loss to the plaintiff, and he joined with the plaintiff in the proofs of loss.

Afterwards the defendant demanded additional proofs of loss,, which were furnished.

J. E. & L. E. Van Etten (J. E. Van Etten, of counsel), for app’lt; Charles A. Fowler (Everett Fowler, of counsel), for resp’t.

Conditions which enter into the validity of a. contract of insurance at its inception may be waived by agents, and are waived if so intended, although they remain in the policy when delivered. Berry v. Am. Cent. Ins. Co., 132 N. Y., 49 — 58; 43 St. Rep., 400 . And the rule is now established that a waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the insured after knowledge of the forfeiture, by which the insurer recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some expense or trouble. Ronald v. Mut. Reserve Fund Life Ass., 132 N. Y., 378 ; 44 St. Rep., 407 ; Armstrong v. Agricultural Ins. Co., 130 N. Y, 560 , 564; 42 St. Rep., 555 ; Pratt v. Dwelling House Mut. Fire Ins. Co., 130 N. Y., 206 -19; 41 St. Rep., 303 ; Roby v. Am. Cent. Ins. Co., 120 N. Y., 510 ; 31 St. Rep., 560 .

The insured notified the agent who issued the policy to him that he had parted with title to the real estate covered by the policy. Subsequent to that notice the company, through the same agent, took the money of the insured and renewed the policy for the term of three years. The plaintiff, who held a mortgage upon the insured property, and to whom the loss, if any, was made payable to the extent of his interest, and to whom the loss was-subsequently assigned, called upon the agent of the company, after the renewal of the policy, and was assured that the policy was all right. After the fire, proofs of loss were furnished and the defendant called for further or additional proofs of loss, without saying anything about a forfeiture. Roby v. Am. Cent. Ins.. Co., 120 N. Y, 510 -17; 31 St. Rep., 560 .

It seems to me that the alleged causes of forfeiture were waived, and for that reason the judgment should be reversed and. a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.