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App. Div.] Fourru DEPARTMENT, JULY TERM, 1903. quently acquired by them when they purchased the assets of the late firm and those of the individual members thereof.

It is apparent, therefore, that in considering the correctness of this conclusion it is important to determine at the outset the essential characteristics of what is known in the commercial world as the good will of a trade or business.

Mr. Story, in his work on Partnership (7th ed. 8 99), defines it as“ the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position or common celebrity, or reputation for skill or affluence or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.”

Thus a merchant may acquire a reputation for fair dealing or for the superior quality of the goods he sells, which gives him an advantage over rival dealers, or the location of his place of business may be such as to attract customers beyond that of his competitors in trade, and these, as well as other like circumstances, secure to him the good will of the trading public, which, it is needless to add, is a valuable adjunct to his business. It is something incorporeal, it is true, but it is, nevertheless, properly regarded as a species of property, and as such an appreciable part of the assets of the owner, It sometimes happens that the good will of a business, as, for instance, a newspaper establishment, constitutes the greater part of its value, and it may be the subject of contract and sale the same as any other species of property. (Boon v. Moss, 70 N. Y. 465; White Corbin

. & Co. v. Jones, 79 App. Div. 373.)

In the case of a partnership it was formerly the rule that its good will was somewhat of the nature of a joint tenancy and that it belonged to the survivor upon dissolution (Hammond v. Douglas, 5 Ves. Jr. 539); but the more modern rule is that it is an asset of the firin which may be sold or disposed of like any other asset for the benefit of creditors of the firm or of the partners jointly. (Dougherty v. Van Nostrand, lioff. Ch. 68; Dayton v. Wilkes, 17 Hlow. Pr. 510; Slater v. Slater, 78 App. Div. 419; affd., so far as this particular question is involved, 175 N. Y. 143.)

App. Div.-Vol. LXXXVI. 8

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

If then the good will of an establishment is, as we have seen, an assignable asset, we see no reason for claiming that in the present case it did not pass to the trustee in bankruptcy, the same as did the stock of cloths or other property belonging to the late firm of Freeman & Freeman; for, by the express provisions of the Bankruptcy Law, such trustee upon his appointment and qualification became vested with the title of the bankrupt as of the date when he was adjudged a bankrupt to all “ property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him.” (30 U. S. Stat. at Large, 566, $ 70, subd. a, 5.)

This language is very comprehensive and is evidently designed to embrace every species of property which a bankrupt may possess, and if the “good will” of his business is something which can be either transferred or levied upon, it certainly seems to be included within the express terms of the statute above quoted.

It is asserted in the 16th volume of the American and English Encyclopædia of Law (2d ed. at p. 723) that “the good will of a business is a well-recognized species of personal property which will pass to a trustee in bankruptcy or insolvency,” and this statement of the rule is not without authoritative decisions to support it. (Williams v. Wilson, 4 Sandf. Ch. 379; Hegeman & Co., v. Hegeman, 8 Daly, 9 ; Cutter v. Gudebrod Brothers Co., 44 App. Div. 605, 611.)

In the case last cited this question was not directly passed upon, but it was intimated pretty strongly by the court that had it been necessary it would have been held that the defendant therein acquired the right to advertise itself as the successor of the assignor in a general assignment for the benefit of creditors by reason of its purchase from the assignee of the assigned estate.

But upon the assumption that the good will is an asset, it hardly seems necessary to cite authorities in support of the proposition last advanced, for bankruptcy itself worked a dissolution of the firm of Freeman & Freeman ; and inasmuch as it deprived its individual members of all their interest in the firm property, neither one of them had the right to advertise himself as a successor to the firm, and yet this right continued to exist somewhere and was vested in some person, and that person must of necessity have been the trustee of the bankrupt estate. With this much determined, it must be

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

conceded that it passed to the defendants, who by purchase secured to themselves the same title which the trustee obtained by operation of law.

It is further urged, however, in opposition to this contention that the defendants failed to obtain title because there was no express mention of good will in the property sold to them, but it is virtually conceded that they succeeded to all the bankrupts' estate, and if so their purchase embraced the good will of the establishment, although not specifically mentioned therein. (Boon v. Moss, supra.)

We think it only necessary to add that if we are right in the views we entertain, the plaintiff has no standing in court to maintain this action, inasmuch as he has parted with any right, title or interest which he ever had in and to the good will of the firm of which he was formerly a partner.

The judgment appealed from should be affirmed.

All concurred; HISCOCK, J., in result only.

Judgment and order affirmed, with costs.

NELLIE A. DOBSON, Respondent, v. THE HARTFORD FIRE INSURANCE

COMPANY, Appellant.

Insurance neglect of the insured to serve proof of loss within sixty days waiver

thereof an insurance adjuster to whom the company refers the matter may waive the defect.

A waiver of a condition contained in a policy of fire insurance, that proofs of

loss shall be served within sixty days after the fire, may be established by proof of acts or conduct on the part of the insurance company occurring subsequent to the breach of the condition, which fairly indicate an intention to

waive the same. The waiver need not be made in express terms; it may be inferred from

circumstances. No new consideration is necessary to support such a waiver, and, when once

established, it cannot be recalled and a forfeiture insisted upon. When determining the question whether there was a waiver of this condition, the jury may take into consideration the fact that the insurance company, with full knowledge of the insured's failure to serve the proofs of loss within the prescribed time, based its refusal to pay solely on another ground, and that,

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

without objection, it retained, for a period of nine or ten days, proofs of loss

served by the insured after the prescribed time had expired. An insurance adjuster, in whose hands the insurance company places the claim

for settlement and to whom it refers the insured as the proper person with whom he is to negotiate, has power to waive the furnishing of proofs of loss within the prescribed time.

APPEAL by the defendant, The Hartford Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 9th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 29th day of December, 1902, denying the defendant's motion for a new trial made upon the minutes.

Irving G. Hubbs, for the appellant.

Kilby & Norris, for the respondent.

ADAMS, P. J.:

The plaintiff was the owner of a building situate at a place called Inlet, in the county of Lewis, in this State, which was occupied as a summer cottage, and was usually unoccupied during the winter season. On or about September 18, 1900, she applied to and obtained from the Queens and Suffolk Mutual Fire Insurance Company, through its local agent, one Copley, a policy of insurance upon this building and its contents for the sum of $700, and on the 11th day of May, 1901, the building, together with its contents, was destroyed by fire. Soon thereafter the plaintiff applied to Copley for a settlement of her loss, and on the 3d day of September, 1901, learned for the first time that the Queens and Suffolk Company had closed up its affairs; that Copley was no longer its agent, and that by some arrangement, the particnlars of which were to her unknown, bier property had been reinsured by the defendant. Copley, notwitlıstanding the fact that he no longer represented the original insurer, recognized the plaintiff's claim as a just one and undertook to obtain an adjustment thereof by the defendant, but in this he failed and the plaintiff was compelled to bring this action for its enforcement.

The defendant in its answer sets up four defenses to the plaintiff's claim, viz. :

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FourTI DEPARTMENT, JULY TERM, 1903.

1. The forfeiture of the policy by reason of the vacancy of the insured building;

2. The fact that the building was insured as a dwelling instead of a summer cottage;

3. The failure of the plaintiff to give immediate notice of the fire as required by the policy, and

4. The plaintiff's failure to serve proofs of loss within sixty days after the fire.

The questions raised by these several defenses were litigated with inore or less tenacity upon the trial, but practically the only issue which was deemed worthy of submission to the jury, excepting perhaps the issue first above mentioned, was the one relating to the plaintiff's failure to serve proofs of loss, and the defendant now expressly abandons all other objections to her recovery.

That the plaintiff did not serve any proofs of loss until some time after the expiration of the sixty days within which she was required by the terms of her policy to serve the same is a fact in the case concerning which there is no dispute ; but it was insisted that nevertheless the defendant, with full knowledge of such default, waived this requirement, and the learned trial justice permitted the jury to say upon all the circumstances of the case whether or not such was the fact. After a careful examination of the evidence we are persuaded that the course pursued by the trial court was correct and that the verdict of the jury, which was for the full amount of the plaintiff's claim, should not be disturbed.

As has already been stated, the plaintiff was unaware until some four months after the fire occurred that the defendant had reinsured her property. In the meantime she had applied to Copley for an adjustment of her loss and he voluntarily notified the defendant by letter of the fire and advised a settlement. The receipt of this notification was acknowledged by the defendant on the thirty-first day of May and Copley was informed that the matter would be placed in the hands of the defendant's special agent, one Smith, of Syracuse, for adjustment.

In about ten days Copley again wrote the defendani reminding it of its promise to place the matter in the hands of its adjuster and requested a speedy adjustment, in order that the plaintiff might proceed to rebuild her cottage. In response to this letter Smith

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