Smith v. Exchange Fire Insurance — 46 N.Y. Super. Ct. 543

Majority

p. 543

ELIZA M. SMITH, Respondent, v. THE EXCHANGE FIRE INSURANCE COMPANY, Appellant.

Headnote

1. Fire Insurance.

1. Proofs of loss.

1. Defectiveness of, when defense is not tenable.

(a) Where no objection was made to the form or sufficiency of the proofs furnished or to the particularity of their details, and none were suggested at the trial which could not have been readily obviated to the extent of the duty to furnish created by the policy, if it had been suggested that greater minuteness of details was desired; and the company acted on the proofs furnished, and employed an adjuster to adjust the amount of damages, and the adjuster acted with the knowledge and co-operation of the assured, and concluded that the loss exceeded the whole sum insured by all the policies insuring the property ; a defense that the proofs of loss were defective is not tenable.

Before Curtis, Ch. J., and Speir, J.

Decided February 2, 1880.

This action was brought on a policy of insurance issued by defendant to Fitzhugh Smith. Loss, if any, payable to plaintiff’s mortgagees.

The action was referred to J. S. Bosworth, who found the facts and law in favor of plaintiff. He wrote an opinion in which he held as set forth in the head-notes.

From the judgment entered on Ms report, defendant appealed to the general term.

W. K. Thorn, attorney, and J. Langdon Ward, of counsel, for appellant.

Charles M. Marsh, attorney, and of counsel, for respondent.

We have examined this case with reference to the very able and painstaking opinion of the learned referee, and see no good ground for differing with him in the result.

The judgment should be affirmed, with costs.