Kiernan v. Dutchess County Mutual Insurance — 61 N.Y. St. Rep. 720

Majority

p. 720

John Kiernan, Resp’t, v. Dutchess County Mutual Insurance Company, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 14, 1894.)

Headnote

Insurance—Fire—Forfeiture—Waiver.

Wliat acts óf the company, after a loss, will amount to a waiver of the incumbrance clause in a policy of insurance.

Appeal from a judgment in favor of plaintiff.

Wilkinson & Cossum (Robert F. Wilkinson, of counsel), for app’lt; Howard Chipp, Jr., for resp’t.

—The most serious question raised upon this appeal is upon the inadmissibility of a chattel mortgage in evidence. It is contended that the mortgage is a forfeiture of the policy, either entirely or in part It seems to me that the forfeiture was waived by the acts of the defendant. Right after the fire the president of the company visited the scene of the fire, inspected the ruins, and conversed with the plaintiff; and it was after that that the plaintiff, with the defendant’s agent, made an arrangement for an appraisal, and an appraisal was mada Proofs of loss were also subsequently put in, and accepted by the defendant. It seems to me that these acts constitute a waiver. Brink v. Hanover F. Ins. Co., 80 N. Y. 108 ; Titus v. Glens Falls Ins. Co., 81 N. Y. 410 ; Roby v. Am. Cen. Ins. Co., 120 N. Y. 510 ; 31 St. Rep. 560 ; Trippe v. Provident Fund Society, 140 N. Y. 23 ; 55 St. Rep. 380 . The effect of the chattel mortgage as a forfeiture having been waived, the defendant was not injured by the court not receiving it in evidence. I see no occasion for an opinion.

The judgment should be affirmed, with costs.

All concur.

Cases cited

Brink v. Hanover Fire Insurance 80 N. Y. 108 N.Y. 1880-02-24 p. 720
Titus v. Glens Falls Insurance 81 N. Y. 410 N.Y. 1880-06-15 p. 720
Roby v. American Central Insurance 120 N. Y. 510 N.Y. 1890-06-03 p. 720
Trippe v. Provident Fund Society 140 N. Y. 23 N.Y. 1893-11-28 p. 720