Gibbs v. Dutchess County Mutual Insurance — 50 N.Y. St. Rep. 35

Majority

p. 35

Richard Gibbs, Resp’t, v. The Dutchess County Mutual Insurance Co., App’lt.

(Supreme Court, General Term, Second, Department,

Filed December 12, 1892.)

Headnote

Insurance (Pire)—Waiver of condition as to other insurance.

Plaintiff procured other insurance on his property in violation of the provision of his policy prohibiting the same without consent of the company defendant, but after the loss defendant’s general agent and adjuster told plaintiff that the company would pay the loss, and thereby induced him to compromise with the other company. Held, that the adjuster had power to waive the forfeiture, and that a finding that there was such a waiver was authorized.

_ Appeal from judgment in favor of'plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

Robert F. Wilkinson, for app’lt;

T. S. Hulse (W. F. O'Neill, of counsel), for resp’t.

This is an appeal from an order denying motion for a new trial on the minutes, and also from a judgment entered upon a verdict of a jury.

The suit was based upon a policy of insurance issued by the defendant to the plaintiff.

The policy contained a condition, that if the plaintiff obtained other insurance, without notice to and approval by the defendant, the policy should be void.

The plaintiff did procure other insurance without such consent and approval, and the policy, at the time of the loss, was void; but the plaintiff contended that this condition had been waived by the defendant, and that was the issue submitted to the jury.

There was evidence tending to show that the defendant, after it knew of the loss, sent its general agent and adjuster to the plaintiff, and said agent stated to plaintiff that the company would pay

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the loss, and thereby induced the plaintiff to compromise with the other insurance company for the loss.

We are of the opinion that, under the circumstances, the agent and adjuster had power to waive the forfeiture, and that the jury was justified in finding that he did waive it. Titus v. Glens Falls Ins. Co., 81 N. Y., 410 .

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.