Karelson v. Sun Fire Office of London — 9 N.Y. St. Rep. 831

Majority

p. 831

Ephraim Karelson, et al., App’lts, v. The Sun Fire Office of London, Resp’t.

(Supreme Court, General Term, First Department,

Filed June, 18, 1887.)

Headnote

1 Insurance—(Fire)—Proof of loss—Waiver

The proofs of loss by fire served by the plaintiffs did not accord with the terms of the defendant’s policy in that they were not signed by the plaintiffs, or either of them, and were not verified. The notice returned by the defendant’s manager, after receiving said proofs of loss, gave no notice of the insufficiency of the papers, but was that he did not admit any liability or the correctness of any statement in the papers contained. Held that if defendants desired to object to the form of the proofs of loss, they were bound to give notice of that fact so that they might be corrected. That by not doing so, they waived the insufficiency in form.

3. Pleading—Denial of an allegation of partnership—Effect of.

Under a simple denial of an allegation of partnership a defendant cannot claim that there are other persons interested in the firm, who should have been made parties plaintiff.

Appeal from a judgment entered upon an order of the court dismissing plaintiff’s complaint.

Adolph L. Sanger, for app’lt; Charles B. Alexander, for resp’t.

The only question which need be considered on this appeal is as to the sufficiency of the proofs of loss attempted to be furnished to the defendants upon the part of the plaintiffs.

The objection that there were not sufficient parties

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plaintiff was not available to the defendants, as no such defense was set up in the answer. It is true that the alleged co-partnership was denied, but such a denial is not sufficient to sustain a claim upon the part of the defendant that there were other partners in the firm beside those alleged in the complaint. If the defendants desired to. avail themselves of this defense, they should have alleged who they were, and that they were still living, so that the plaintiffs could have been informed as to the precise claim made by the defendants in this respect, and have amended their proceedings accordingly if they were so advised.

Under a simple denial of an allegation of partnership? a defendant cannot claim that there are other persons interested in the firm who should have been made parties plaintiff.

The proofs of loss do not accord with the terms of the de • fendant’s policy as set forth in the complaint, among other things in that they were not signed by the plaintiffs or either of them, nor were they verified by their oath or at firmation, and unless there has been some waiver either express or implied, of this condition, the objection now taken must be fatal to the plaintiff’s claim.

The alleged proofs of loss were served on the defendants on the 15th of September, 1885, and on the 22d of Septem her the manager of the defendants sent the very remarkable letter of that date, in which it is evident that he de sired to keep alive all objections to the proof and the claim, and to keep the plaintiffs in entire ignorance as to what objection he had to the proofs as served. In this, however, we think he has failed.

The whole of the first part of the letter is qualified by the last paragraph. The manager says to the plaintiffs with - out admitting anything, you are hereby notified that his company has not admitted any liability, and does not admit any liability whatever for or on account of said alleged loss, or the validity of any claim made therefor, nor the correctness of any statement in said papers (referring to proofs of loss) contained. That his company has not waived and does not and will not waive anything, and expressly reserves any and all objections to any and all claims that have been or may be made by you or on your behalf against his company for and on account of said alleged loss.

In his notice, the manager gives no notice of the insufficiency of the papers; his notice is that he does not admit any liability or the correctness of any statement in the papers contained.

The papers called proofs of loss were retained by the defendants; they pointed out no defects in them; the sole

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tenor of their notice was that they would not admit the claim, and that they must not be considered as admitting the correctness of any statement m the papers by their retention

If the defendants desired to object to the form of the proofs of loss, they were bound to give notice of that fact, so that they might be corrected. This course, which ordinary fairness would seem to have dictated, the defendants carefully avoided doing, and by their letter of September 22d it seems to have desired to mislead the plaintiffs as to the grounds of their refusal to pay, while endeavoring to retain any other objection which the ingenuity of its manager might subsequently discover.

The loss was disputed upon the ground that no contract of insurance existed, and to that point was the attention of the plaintiffs directed, and as the proofs of loss were retained and no complaint made as to any particular admis - sions or defects in the proofs of loss, the plaintiffs had the right to assume that the contention was as to the fact of the existence of the contract of insurance. Brink v. Hanover Ins. Co., 80 N. Y., 112 ; Hermann v. Niagara Ins. Co., 100 id., 411.

Under this condition of the evidence it seems to have been error to have dismissed the plaintiffs" complaint upon the ground that the proofs of loss were insufficient.

Judgment must be reversed and new trial ordered, with costs to appellants to abide event.

Brady and Daniels, JJ , concur.