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The complaint states two causes of action; one for loss by fire, of property insured by the defendant, the other for reformation of the application, upon the faith of which the policy issued. The policy provides that no action shall be sustained against the company under or by virtue of it, unless commenced within one year next after any claim shall accrue, and the omission to comply with its terms, is, I think, a conclusive answer to the complaint. That such condition is valid cannot now be questioned. (Ripley v. Ætna Ins Co., 30 N.Y., 136.)
The loss occurred on the 8th of March, 1876, proofs of loss were duly served on the 8th of May, and as by the terms of the policy the amount thereof became payable in sixty days thereafter, the claim accrued on the 8th of July, 1876. The action was not commenced within a year thereafter, and the case is thus brought directly within the terms of the condition. Nothing occurred during the progress of the former suit to relieve the party from its effect. That was an action on the policy upon the grounds stated in the first cause of action herein. In it the plaintiff might have had all the relief which he now seeks, and with or without
the amendment, which the court gave him leave to make, he would have been entitled to recover, if the facts had been then established as they are now found to be. (Emory v. Pease,20 N Y, 62; N.Y. Ice Co. v. N.W. Ins. Co., 23 N.Y., 357.) It is claimed that equitable relief is sought in this case; if necessary it could have been had in that. To the objection made by the defendant in its answer, and proved upon the trial that the incumbrances on the property insured exceeded the amount stated in the application, the plaintiff could very properly have replied by proving the facts set up in the second cause of action in this case. In doing so he would not have gone beyond the provisions of the Code (§ 168 of the Old; § 522 of the New), by which the new matter is deemed controverted, and the plaintiff without pleading, permitted to traverse or avoid it as the case may require. Nor would he have invoked new doctrine; for the rule has, since the union of legal and equitable remedies in one system, and their application by one court been repeatedly applied, and declared to be so broad that it secures to the plaintiff the benefit of every possible answer to the defense made by way of new matter, not constituting a counter-claim as fully as though it were alleged in the most perfect manner. For that purpose, evidence admissible under the principles of either law or equity, takes the place of pleading. (Dobson v.Pearce, 12 N.Y., 156; Phillips v. Gorham, 17 id., 270.)
I have not adverted to the former suit as being a bar to this, or in any way preventing the bringing of another, but to show that the present one was unnecessary so far as the enforcement of any legal or equitable right of the plaintiff is concerned. Nor do I think that the conduct of the defendant therein gives any new life to the plaintiff's cause of action. Doubtless the condition might be extended or waived by such acts of the insurer, as hindered or prevented the action, or induced the insured to suppose that a strict compliance therewith would not be insisted upon, but in such a case he must have acted in good faith, and been actually misled. (Ripley v. Ætna Ins. Co., 30 N.Y., 136.) The plaintiff insists that this was the result of the defendant's conduct in the former suit. But so far from deluding the defendant with false hopes, it would seem to indicate on its part, a determination to resist payment, and yield no grace or favor. Its agents, as we learn from the opinion of the court below, as early as the 8th of May, 1876, notified the plaintiff that by reason of the misstatement in the application the defendant was "let out," "that the policy was void, and the plaintiff had no legal claim against it." The objection was insisted upon by answer, and relied upon at the trial. It is true the defendant's counsel objected to evidence which it seems should have been received, and that the court sustained the objection, but at the same time gave leave so to amend the pleadings as to make the evidence admissible. The favor of the court was rejected, and the plaintiff's counsel, insisting that he was right, obtained time to make a case upon which to review the ruling. I am unable to perceive in any of these matters, in the action of the court or counsel, anything soever, to prevent the defendant insisting upon the condition, nor that its doing so is any impeachment of its good faith. That the plaintiff's counsel failed to proceed in that action, and paying costs thereof abandoned it, cannot tend to the advantage of the plaintiff or confer a new right against his adversary. As the commencement of that action does not bring the present within the limitation, neither does its failure extend the time. (Riddlesbarger v. Hartford Ins. Co., 7 Wall., 386.) The case cited by the learned counsel for the respondent are abundant to show that waiver may be implied from slight circumstances but none afford any support to the position that a successful defense of one action estops a party from insisting that a second cannot be maintained because commenced too late. Nor does the acceptance of costs given to indemnify a successful litigant for the false clamor of his adversary furnish to the latter any consideration or excuse for non-compliance with a contract stipulation.
The plaintiff also relies upon the fact that the defendant's counsel extended the time within which the plaintiff might prepare his case, or bill of exceptions in the first action. There is no connection between the two events, nor was one the inducement of the other. An attorney may mitigate the rigor of practice in one suit without creating a new cause of action against his client.
It is further urged that the defendant should be estopped from asserting that the plaintiff had a remedy at law, so far at least as it effects the limitation of the time of commencing the action, because the defendant's counsel upon the trial of the first action insisted that the remedy of the plaintiff was in equity, and not at law. What the defendant's counsel did upon the former trial, and in the progress of it is binding upon his client so far as that action and its consequences are concerned, but no farther. It was not within the scope of his authority to change the rights of his client except so far as it might be done in that action; and by putting an end to that, he did not justify the commencement of another, nor could he create a cause of action which did not before exist. But although the court entertained the objection, the trial judge gave leave to amend. Instead of doing so the plaintiff elected to discontinue; this was not the fault of the defendant, yet it was still in the plaintiff's power to commence a new action before the expiration of the year; he did not do so, and for his omission the defendant is in no respect to blame.
The second cause of action, although in form for the reformation of the application is in fact to get rid of a defense interposed by the defendant, and so far, and for that purpose is unnecessary. Nor would the contract of insurance be other or different when the application is corrected, than it was before. (Maher v. Hibernian Ins. Co., 67 N.Y., 283.) The cases cited by the learned counsel for the respondent lead to no other result, for they are inapplicable to the case in hand. WoodburySavings Bank v. Charter Oak F. and M. Ins. Co. (31 Conn., 517), was a suit in equity. An
action at law had been commenced upon the policy issued by the defendant within the time limited, and it was held that the suit in equity, although commenced afterwards was not barred, because it was in aid of the other. In Connecticut the distinction between the systems of law and equity, is still preserved, and the latter was alone competent to the relief sought. In Hay v.Star Ins. Co. (13 Hun, 496), affirmed in this court,* the policy contained a contract different from the one bargained for, and had been fraudulently issued in its place. The plaintiff held nothing upon which he could maintain an action, and the object was to compel the defendant to give a policy according to its agreement, or in the language of the opinion in that case, it "was as though no policy had been issued, and the action was for the specific performance of the agreement to insure." In the case before us the plaintiff holds a policy perfect in all its stipulations, and according with the agreement of the parties. The difficulty is that the defendant seeks to avail itself of a defense caused by the act or omission of its agent, but it is one which the plaintiff could have avoided in the former action. This action was not necessary and was commenced too late. I can discover no ground on which the plaintiff can stand against this appeal.
The judgment of the General and Special Terms should therefore be reversed, and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.
* 77 N.Y., 235.