Oneida County NyArchives Court.....Brown, James Vs. Hartford Fire Insurance Co 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

JAMES BROWN, Respondent, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant.

Insurance policy — proofs of loss — when held to be sufficient.

In an action, brought on a fire insurance policy issued by the defendant, the 
defendant alleged in its answer, as a defense, that the plaintiff had neglected 
and refused to furnish the defendant with a certificate under the seal of a 
magistrate, notary public or commissioner of deeds nearest the place of the 
fire, and not concerned in the loss or related to the assured, as required by 
the provisions of the policy.

It appeared on the trial that the plaintiff made and delivered to the defendant 
an account of his loss, in which he claimed that the amount of such loss was 
$2,200, and with this account he produced to the defendant the certificate of 
the nearest magistrate to the effect that he was not concerned in the loss or 
related to the insured; that he was acquainted with the character and 
circumstances of the assured; and having made diligent inquiry into the fact set 
forth in the foregoing instrument he believed and was satisfied that the said 
assured had, without fraud, by reason of the fire therein described, sustained 
loss on the property insured to the amount of $_____, the sum stated in his 
affidavit of loss. These proofs of loss were retained by the defendant, the only 
specific objection made to them being that they did not contain a particular 
account of the loss.

Subsequently the plaintiff furnished an additional account of loss which 
contained a detailed statement of the property destroyed, and in which he also 
claimed that the amount of his loss was $2,200; and with that account another 
certificate by the same magistrate, by which he certified that he had examined 
the circumstances attending the fire or damage alleged, and that he was well 
acquainted with the character and circumstances of the assured, and verily 
believed that he had by misfortune, without fraud or evil practiced on his part, 
sustained loss and damage on the property in an amount unknown to the magistrate.

Held, that the first certificate of the magistrate was a substantial compliance 
with the requirements of the policy, and that the production of the second 
certificate; if defective, did not render the first unavailing.

That as the defendant retained the account of loss and certificate first 
delivered, and required an additional and more particular account of loss, which 
was furnished, that both of the accounts of loss and both of the certificates 
furnished should be taken together and be regarded as constituting the proof of 
loss furnished by the plaintiff, and that the second proof of loss furnished did 
not in any manner supersede or nullify the first.

Appeal by the defendant from a judgment recovered upon the trial of the action 
at the Oneida County Circuit, which was entered in the office of the clerk of 
Oneida county on the 10th day of May, 1887, and from an order of the Oneida 
Special Term denying a motion for a new trial, made upon a case and exceptions, 
and based solely on the exceptions taken on the trial, which was entered in the 
said clerk's office on December 19, 1888.

The action was on a fire insurance policy issued by the defendant to the 
plaintiff on a stock of hardware contained in a brick building situated at North 
Bay, Oneida county, N. Y. The amount for which such policy was issued was 
$1,500. The property insured was totally destroyed by fire November 22, 1884.

Among other matters set up as a defense to this action, the defendant, by its 
answer, alleged that the plaintiff neglected and refused to furnish the 
defendant with a certificate, under the seal of the magistrate, notary public or 
commissioner of deeds nearest the place of the fire and not concerned in the 
loss or related to the assured, as required by the provisions of such policy. 
The policy contained the following provision: "In case of loss the assured shall 
give immediate notice thereof and render to the company a particular account of 
said loss, under oath, stating the time, origin and circumstances of the fire; 
the occupancy of the building insured or containing the property insured; other 
insurance, if any, and copies of the written portion of all policies; the whole 
value and ownership of the property and the amount of loss or damage, and shall 
produce the certificate under the seal of a magistrate, notary public or 
commissioner of deeds, nearest the place of the fire and not concerned in the 
loss or related to the assured, stating that he has examined the circumstances 
attending the loss, knows the character and circumstances of the assured, and 
verily believes that the assured has, without fraud, sustained loss on the 
property insured to the amount claimed by said assured." After the fire, and on 
or about December 13, 1884, the plaintiff prepared and delivered to the 
defendant an account of his loss, and also produced to the defendant a 
certificate under the seal of the nearest magistrate, which was as follows:

"STATE OF NEW YORK,) SS. County of Oneida,)

"I, James Rae, a justice of the peace, in and for said county, residing most 
contiguous to the property of James Brown, insured, as set forth in the 
preceding affidavit, certify that I am not concerned in that loss or claim, 
either as a creditor or otherwise, or related to the insured or sufferers, and 
that I am acquainted with the character and circumstances of said James Brown, 
and having made diligent inquiry into the facts set forth in the foregoing 
statement, believe and am satisfied that the said assured has, without fraud, 
sustained by said described fire, loss on the property insured to the amount of 
dollars, the sum stated in his affidavit of loss.

"In witness whereof, I have hereunto set my hand and official seal this 13th day 
of December, A. D. 1884.

"JAMES RAE, [L. S.]
"Justice of the Peace."

After the receipt of such account and certificate by the defendant, its duly 
authorized agent wrote and sent to the plaintiff a letter, which was received by 
him, and which was as follows:

"James Brown, North Bay, N. Y.:

"Dear Sir.— I have received certain papers signed by you, which purport to be 
proofs of loss by fire to property named in policy No. 902, of Hartford Fire 
Ins. Co., Camden, N. Y., agency. You will please take notice that the so-called 
proofs of loss are not in conformity with, and do not fulfill the terms and 
conditions of the policy. Among other defects, they do not contain a particular 
account of said (alleged) loss. (See line 26 of printed conditions of policy.) 
You will also please take notice that this Co. has not waived, and does not 
waive, any exceptions or objections to said papers or alleged proofs of loss, 
nor any defense to any claim made or to be made by reason of said policy, fire 
and alleged loss.
"Glens Falls, January 3, 1885.
"Resp'lly,
"A. NEWTON LOCKE,
"G. A."

On the 15th day of January, 1885, such agent sent plaintiff another letter as 
follows:

"Syracuse, N. Y., January 15, 1885.
"James Brown:
"Dear Sir.—Yours of 7th inst. has been received. In reply thereto you will 
please take notice that the Hartford Fire Ins Co. objects to your so-called 
proofs of loss, because it does not contain a particular account of the loss. 
That is precisely as I explained to you in person when we met at No. Bay, and as 
I wrote you 3d Jan. inst. It is not sufficient to say the value was $2,200. Your 
contract with the Co. requires you to furnish a 'particular account.' You must 
prepare a schedule of the goods alleged to have been burned. You will take 
notice that the Hartford Fire Ins. Co. does not, and will not, waive any 
exceptions or objections to said papers or alleged proof of loss, nor any 
defense to any claim made or to be made by reason of said policy, fire and 
alleged loss
"Respectfully,
"A. Newton Locke, "G. A."

After the receipt of these letters from the defendant's agent, the plaintiff 
prepared and delivered to the defendant a further account of loss, which 
contained a particular or detailed account of the plaintiff's loss, and 
accompanying which was another certificate by said magistrate, as follows:

"STATE OF NEW YORK,) SS.
County of Oneida,) "I, James Rae, residing in North Bay, most contiguous to the 
property hereinbefore described, hereby certify that I am not concerned in the 
loss or claim above set forth, either as a creditor or otherwise, or related to 
the insured or sufferers; that I have examined the circumstances attending the 
fire, or damage as alleged, and that I am well acquainted with the character and 
circumstances of the assured, and do verily believe that he has by misfortune 
and without fraud or evil practice on his part, sustained loss and damage on the 
property insured, amount unknown to me.

"In testimony whereof, I have hereunto set my hand and [L. S.]       official 
seal, this 31st day of January, A. D. 1885.
"JAMES RAE, "Justice of the Peace."

After the defendant had received such additional account and certificate, the 
defendant's agent again wrote the plaintiff the following letter:

"New York, Feb'y 17, 1885.
"Ja's Brown :

"Dear Sir. — We received, without letter of explanation, a statement purporting 
to be proof of loss on 22d November, 1884, to property named in policy No. 902, 
issued to you by Camden agency. Please take notice that it is not, in form or 
substance, a compliance with the requirement of said policy, and the same is 
hereby rejected as proofs of loss, and you are required to furnish full proof in 
due form and in strict compliance with all the terms, conditions and provisions 
of the policy. There is no particular account of amount, of loss signed and 
sworn to by you, and the so-called proof of loss does not bear the certificate 
of nearest official to the amount of loss. 

You will take notice that the company has not waived or dispensed with any of 
the terms, conditions, stipulations or provisions of said policy, and reserves 
any and all objections to any and all claims made or to be made upon it by 
reason of said alleged loss under policy.

"A. N. L.,
"G. A."

No other account of loss or certificate of magistrate were furnished by the 
plaintiff. On the trial the question of the sufficiency of such certificates was 
raised by objection to its admission in evidence, and also by motion for a 
nonsuit based on that ground.

I. D. Garfield, for the appellant.

D. T. Searle, for the respondent.

Martin, J.:

But a single question is presented for our consideration on this appeal. The 
only claim made by the appellant is, that the plaintiff failed to produce a 
proper certificate of the magistrate, notary public or commissioner of deeds 
nearest the place of the fire, as required by the policy upon which this action 
is brought; that the production of such a certificate was a condition precedent 
to the plaintiff's right of recovery, and that the trial court erred in not so 
holding and in refusing to nonsuit the plaintiff upon that ground.

That the production of such a certificate was a condition precedent to the 
plaintiff's right of recovery we have no doubt. It is not, however, claimed that 
the plaintiff failed to furnish a certificate, nor that the magistrate, who made 
the certificate produced, was not nearest the place of fire, or that he was 
concerned in the plaintiff's loss or related to the assured. The sole claim of 
the defendant is, that the last certificate produced did not certify that the 
magistrate verily believed that the assured had, without fraud, sustained loss 
on the property insured to the amount claimed by said assured. 

The plaintiff made and delivered to the defendant an account of his loss, in 
which he claimed that the amount of such loss was $2,200, and with this account 
he produced to the defendant the certificate of the nearest magistrate that he 
was acquainted with the character and circumstances of the assured, and having 
made diligent inquiry into the facts set forth in the foregoing statement, he 
believed and was satisfied that the assured had, without fraud, sustained by 
said described fire loss on the property insured to the amount of dollars, the 
sum stated in his affidavit of loss. While this certificate did not, perhaps, 
strictly comply with the provision of the policy, it was a substantial 
compliance with it, and sufficient. The only specific objection made to the 
proofs of loss furnished was, that they did not contain a particular account of 
such loss. This account of loss, and certificate were retained by the defendant. 
Subsequently the plaintiff furnished an additional account of loss, which 
contained a detailed statement of the property destroyed, and in which he also 
claimed that the amount of his loss was $2,200. With that account, another 
certificate by the same magistrate was produced, by which he certified that he 
had examined the circumstances attending the fire, or damage alleged, and that 
he was well acquainted with the character and circumstances of the assured, and 
verily believed that he had by misfortune, without fraud or evil practice on his 
part, sustained loss and damage on the property insured, amount unknown to him. 
The last certificate, if considered alone, was not strictly such as was required 
by the provisions of the policy. If the first certificate produced by the 
plaintiff was superseded by the last, so that the first must be wholly 
disregarded, and not treated as a part of the proofs of loss furnished by the 
plaintiff in pursuance of the requirements of the policy, then, perhaps, the 
defendant's claim should be sustained. If, however, the first certificate was 
not superseded by the second, and is still to be treated as a part of the 
plaintiff's proofs of loss, then that provision in the policy was substantially 
complied with, and the court properly refused to grant the defendant's motion 
for nonsuit on that ground. Hence the real question to be determined is whether 
the first certificate furnished is to be still regarded as a part of the 
plaintiff's proofs of loss.

By an examination of the provision of the policy under consideration, it will be 
seen that the certificate of the magistrate does not necessarily form any part 
of the account of loss required. It, at most, need only refer to the amount 
claimed by the assured; it is a portion of the plaintiff's required proofs of 
loss, but may, and we think does, exist independent of the account of loss. The 
first certificate was received by the defendant and retained by it without 
objection. It sufficiently certified as to plaintiff's loss to the amount 
claimed by him. The amount claimed was not changed by the additional account 
furnished by the plaintiff. We are of the opinion that when the plaintiff 
produced to the defendant the first certificate of the magistrate, it was a 
substantial compliance with the requirements of the policy, and that the 
production of a second certificate, if defective, did not render the first 
unavailing. Moreover, we are of the opinion that as the defendant retained the 
account of loss and certificate first delivered, and required an additional and 
more particular account of loss, which was furnished, that both of the accounts 
of loss and both of the certificates furnished should be taken together, and be 
regarded as together constituting the proofs of loss furnished by the plaintiff, 
and that the last proofs furnished did not, in any manner, supersede or nullify 
the first. When considered together we think the magistrate's certificates must 
be regarded as a sufficient compliance with the requirements of the policy, and 
that the court properly so held. 

If correct in these conclusions, it follows that the judgment should be affirmed.

Hardin, P. J., concurred; Merwin, J., not sitting.

Judgment and order affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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