Bacouby v. United States Fidelity & Guaranty Co. ( 1908 )

MacLean, J.

In consideration of twelve dollars and fifty cents premium, and of the statement in the schedule annexed thereto and signed by the assured, the defendant issued to the plaintiff a policy against loss by burglary, during the term of one year from the 13th of August, 1903, made subject to certain agreements called conditions, where among were: Ho agent has authority to change this policy or to waive any of its provisions, nor shall any notice to or knowledge of the agent be held to effect a waiver or change in the contract; “ the assured shall facilitate the adjustment of any claim made by submitting himself, his household and employees to examination and interrogation by the company’s representatives;” and the company shall not be held to have waived any provision or condition of the policy by any act taken in connection with the investigation of any claim. This action was brought because of loss by a burglary committed February 26, 1904, in her premises 774 East One Hundred and Sixty-fifth street, New York city. The defendant pleaded and proved on the trial that the statement signed by the plaintiff in the schedule was not in all respects true in that, while the plaintiff had declared in the schedule, “ the assured has never suffered loss by burglary, theft or larceny either at the premises above described or elsewhere nor received indemnity thereforshe had suffered loss by burglary, on January 13, 1903, at 319 East Seventy-second street, and received, on or about the fourth day of March of the same year, from the General Accident Insurance Corporation of Perth, Scotland, the sum of $600, under a policy of burglary insurance issued to her by that company. This breach of warranty vitiated the policy, and the complaint was dismissed. The plaintiff here contends that the breach of warranty was waived, because the defendant, after the plaintiff under examination had admitted the facts of the alleged loss, continued that examination; and relies upon statements in the opinion and rulings in the case of Titus v. Glens Falls Ins. Co., 81 N. Y. 410, more or less followed in Roby v. American Central Ins. Co., 120 N. Y. 510, and Carpenter v. German American Ins. Co., 135 id. 198. In each of those cases, however, the facts were dissimilar to those proven here, wherein nothing was done by the defendant or its agents to lead the plaintiff to suppose that it did not intend to act upon the breach of warranty. To avail herself of such a plea of waiver it was incumbent upon the plaintiff to plead a waiver of facts which, taken together, constituted a waiver on the part of the defendant. Winter v. City of Niagara Falls, 190 N. Y. 198. The judgment should he affirmed.

Gildersleeve, J., concurs.

Seabury, J. I concur on the ground that, under the pleadings, the plaintiff could not prove a waiver.

Judgment affirmed, with costs.