The most serious question raised upon this appeal is upon the admissibility 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 made. 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. Insurance Co., 80 N. Y. 108; Titus v. Insurance Co., 81 N. Y. 410; Roby v. Insurance Co., 120 N. Y. 510, 24 N. E. 808; Trippe v. Society, 140 N. Y. 23, 35 N. E. 316. 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.
KIERNAN v. DUTCHESS COUNTY MUT. INS. CO.
(Supreme Court, General Term, Third Department.
July 14, 1894.)
Insurance—Forfeiture of Policy—Waiver.
A provision that the policy shall be forfeited if the insured property is subject to mortgage is waived where the president of the company inspected the scene of the fire, and afterwards the insurance agent arranged for an appraisal, which was made, and proofs of loss were accepted by the company.
Appeal from circuit court, Ulster county.
Action by John Kiernan against the Dutchess County Mutual Insurance Company. There was a judgment in favor of plaintiff, and defendant appeals.
Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Wilkinson & Cossum (Robert P. Wilkinson, of counsel), for appellant.
Howard Chipp, Jr., for respondent.
Case Details
29 N.Y.S. 1126
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