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[Vol. 86. went to see Copley and made some inquiries of him concerning the plaintiff's loss and about the propriety of his having a personal interview with the plaintiff. It seems, however, that nothing further in the way of adjustment was done, and on the thirtieth day of June Copley again wrote Smith, saying that he supposed “the matter had been fixed up before this," but had just been informed by the plaintiff that such was not the case and requested a speedy settlement. To this letter Smith replied under date of August fifth (more than a month after his receipt of Copley's letter) and suggested to the latter that as the "agent who issued the policy, it will be proper for you to refer her (the plaintiff) to the printed conditions of policy and thereby relieve her mind."

It is to be observed that when this letter was written the sixty days had expired and the plaintiff, lulled into security by the assurance that her loss would certainly be adjusted by the defendant's adjuster, had omitted to comply with the requirements of the policy respecting the furnishing of proofs of loss. The purpose of the defendant's delay was thus made so obvious that Copley on the sixth day of August wrote Smith a sharp letter asking what he meant by suggesting that he (Copley) refer the plaintiff to the printed conditions of the policy, adding: “You certainly would not refuse to pay the claim after telling me that you would look after it. I think the honorable and cheapest way is to see her and I believe you will get a fair settlement. You could hardly take the advantage of a woman simply because she failed to send in the regular proof, when you knew all about it. If this is your meaning, Mr. Smith, I think you are doing wrong. This is an honest fire and you must deal with her in an honest manner."

This appeal apparently had its desired effect, for Copley testified that he thereafter either saw Smith or received a letter from him, and that the only condition to which the latter called his attention or insisted upon was the one relating to the vacancy of the building insured. However, no further attempt was made to adjust the loss until the twenty-seventh day of September following, when the plaintiff's attorneys wrote the defendant and they were likewise referred to Smith and requested to address further communications to him. On the seventh day of October Smith replied to this letter stating that the defendant denied all liability under its policy upon

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FOURTH DEPARTMENT, JULY TERM, 1903.

the ground that the insured property was unoccupied at the time of the fire in violation of the conditions of the policy, and upon the further ground that proofs of loss had not been served within the required time, which was the first information the plaintiff had received that the latter ground was to be urged. Upon the same day that this letter was dated the plaintiff's attorneys wrote Smith requesting him to furnish them with blank proofs of loss, and it is conceded that such proofs were mailed to the defendant on the ninth day of November following; that they were received by the defendant on the eleventh and immediately forwarded to Smith, who retained them until the eighteenth, when he returned them with a statement to the effect that the defendant declined to receive them and denied all liability for the same reasons stated in his letter of October seventh.

These facts, together with others of somewhat less importance which have not been specifically mentioned, are in our opinion sufficient to support the conclusion reached by the jury that the defendant waived the performance of the only condition which it is now insisted was essential to the plaintiff's recovery upon her policy.

It is the established law of this State, as we understand it, that a waiver of such condition may be established by proof of acts or conduct occurring subsequent to the breach of the condition which fairly indicate an intention to waive the same, and that no new consideration is necessary to support such a waiver (Prentice v. Knickerbocker L. Ins. Co., 77 N. Y. 483); also that such a waiver when once established cannot be recalled and a forfeiture insisted upon. (Brink v. Hanover Fire Ins. Co., 80 N. Y. 108.)

It is perhaps needless to add that such waiver need not be made in express terms, but may be inferred from circumstances.

In Goodwin v. Mass. Mut. Life Ins. Co. (73 N. Y. 480), which was an action upon a policy of life insurance, the plaintiff informed the defendant's agent of the death of the insured, who in turn notified his principal of the fact. Ten days thereafter the plaintiff called upon the agent and asked what was to be done. The agent replied that nothing could be done as the policy had lapsed and was void. No blanks were furnished and the defendant refused to pay on the ground stated. After the expiration of the time within which proofs of death should have been furnished, the plaintiff's

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. counsel wrote the defendant stating that the plaintiff had been misled by the information of the defendant's agent in not furnishing proofs of death, to which the defendant answered that the counsel had mistaken the grounds of the defendant's refusal to pay, and placed its objection upon the ground of the expiration of the policy. Proofs of death were thereupon made out and sent to the defendant and retained by it without objection. It was held that these facts established a waiver of the objection that proofs of death were not furnished in due time.

If the witness Copley is to be believed, and the jury certainly had a right to believe him, the defendant placed its refusal to pay solely upon the ground of the vacancy, with full knowledge that the plaintiff's time to serve proofs of loss had expired, and this fact brings the case directly within the principle of the one above cited.

In Walker v. Phoenix Ins. Co. (156 N. Y. 628, 633) it was said: "It is well established that if the words and acts of the insurer reasonably justify the conclusion that with full knowledge of all the facts, it intended to abandon or not to insist upon the particular defense afterward relied upon,' a verdict or finding to that effect establishes a waiver, which, if it once exists, can never be revoked.” Which was practically a reiteration of the same principle enunciated in Goodwin v. Mass. Mut. Life Ins. Co. (supra) in the explicit language which follows: "When an insurance company, by means of its officers or agents, in response to a claim for a loss, fails to say anything about the time of presenting the proofs after it has expired, but claims some other defense, the presumption is that it does not intend to interpose any other besides that named, and it is a fair inference to be derived from the fact that it was silent on the subject that it designed to waive the violation of such a condition."

But the circumstance above adverted to is by no means the only one in the case which tends to establish a waiver. The retention by the defendant of the proofs of loss without objection for a period of nine or ten days after they had been served was a circumstance which the jury had the right to take into consideration in disposing of this question.

Owen v. Farmers' Joint Stock Ins. Co. (57 Barb. 518) was a case where, with full knowledge of the forfeiture, the proofs were kept for this precise length of time. This was held to be some

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FOURTH DEPARTMENT, JULY TERM, 1903.

evidence of a waiver, and the decision of the General Term to that effect was subsequently affirmed in the Court of Appeals. (See Baggerly v. Farmers' Joint Stock Ins. Co., 72 N. Y. 601; Van Aller v. Farmers' Joint Stock Ins. Co., 10 Hun, 397; affd., 72 N. Y. 604; Goodwin v. Mass. Mut. Life Ins. Co., supra.)

The defendant places much reliance upon the case of Brink v. Hanover Fire Ins. Co. (70 N. Y. 593), which apparently enunciates a different principle from the one asserted in the cases to which we have adverted; but upon a careful reading of that case it will be discovered that the principle there declared is simply the opinion of one member of the court, and that it was speedily repudiated by the court itself. (Brink v. Hanover Fire Ins. Co., SO N. Y. 108.)

There is but one other question in the case which requires our attention, and that relates to the right of Smith to waive the furnishing of proofs of loss within the specified time; and all that we deem it necessary to say upon this subject is that he was the defendant's adjuster; that the claim was placed in his hands by the defendant for settlement; that the plaintiff was referred to him as the proper person with whom to negotiate, and that he was, consequently, clothed with as much authority to adjust and settle the plaintiff's claim as was the defendant itself.

Under these circumstances there can be no doubt as to his power to waive any condition of the policy. (McGuire v. II. F. Ins. Co., 7 App. Div. 575; affd., 158 N. Y. 680; Sergent v. L. & L. & G. Ins. Co., 155 id. 349; Smaldone v. Ins. Co. of N. Am., 162 id. 580.)

We think the judgment and order appealed from should be affirmed.

All concurred.

Judgment and order affirmed, with costs.

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

DOROTHEA WERR, Respondent, v. MICHAEL KOHLES, Appellant.

Charge that the jury may consider the non-production of a paper in the possession of the plaintiff's attorney, which would explain the transaction at issue — it is proper although such paper is in court and accessible.

In an action to recover a sum of money which the plaintiff claimed to have loaned to the defendant, the principal issues litigated were as to whether the money in question was loaned to the defendant or to one Sherlock, for whom the defendant claimed he had acted as agent, and as to the time when a certain payment, which was relied upon to take the case out of the Statute of Limitations, had been made.

This payment was made by the defendant to the plaintiff's daughter, and, at the time of making it, he presented to, and left with, her, for the signature of the plaintiff, a receipt for the money in question. The daughter, who gave important evidence for the plaintiff as to the date of the payment, admitted that she fixed the date of such payment largely by reference to the receipt. The receipt was in court in the possession of the plaintiff's attorneys, but they did not place it in evidence.

The defendant asked the court to charge that the jury might "take into consideration the fact of the non-production of this alleged receipt, referred to by Mrs. Young in her testimony, in determining what the original transaction was and where the truth in this matter lies."

The court declined to charge as requested "because it appears that this paper is here in court and would be accessible."

Held, that the refusal to charge as requested constituted an error requiring a new trial.

APPEAL by the defendant, Michael Kohles, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 7th day of February, 1903, affirming a judgment of the Municipal Court of the city of Syracuse, entered on the 10th day of September, 1902, and also affirming an order of said Municipal Court, entered in the office of the clerk of said court on the 29th day of September, 1902, denying the defendant's motion for a new trial made upon the minutes.

Ernest I. Edgcomb, for the appellant.

J. J. Kennelly, for the respondent.