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plaintiff had acted in entire good faith in endeavoring to select, after the appraisers had disagreed, a disinterested and impartial umpire. Such request, however, was not made by defendant, relying, as it did, upon the right to have the question disposed of as a matter of law; and, with this position taken by the defendant, we do not think the ruling of the trial judge was wrong.

The other ground of the motion to dismiss, namely, the failure to present proofs of loss in time, is the most serious question in the case. It is conceded that the fire occurred in February, that proofs were not furnished until May, and that the policy required that they should be furnished within 60 days after the fire. Upon the law, therefore, unless the evidence shows that this condition has been expressly or impliedly waived, it would bar the plaintiff's recovery. The question of what will constitute a waiver has been frequently discussed. In Koller v. Insurance Co. 1 it was said:

"While a waiver of a condition of forfeiture need not be based upon a technical estoppel, yet, in the absence of an express waiver, some of the elements of an estoppel must exist,--the insured must have been misled by some action of the company which caused the omission to comply with the condition, or it must have done something, after knowledge of a breach of the condition, which could only be done by virtue of the policy. Armstrong v. Insurance Co., 130 N. Y. 560, 29 N. E. 991; Ronald v. Association, 132 N. Y. 378, 30 N. E. 739. Forfeitures plainly incurred, and not waived, must be enforced by the courts. Quinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31.

Mere silence at a time when it was not required to speak is not a waiver, nor evidence from which waiver may be inferred, (Arm. strong v. Insurance Co., supra;) so that the mere retention of proofs served after the time limited for their service is not performance of the condition precedent."

The facts relied upon in this case to show waiver are the receipt of the proofs of loss without objection, and retaining the same, and the entering into the agreement of arbitration before the time had expired within which the proofs of loss should have been furnished. In Brink v. Insurance Co., 80 N. Y. 113, it was said:

"If a company intends to avail itself of the technical objection that the proofs are not filed in time, common fairness requires that it should refuse to receive them on that ground, or at least promptly notify the assured of their determination; otherwise, the objection should be regarded as waived."

And, though the question has not been directly passed upon in this state, an argument in support of the proposition that the entering into an arbitration before notice or proofs of loss have been served is a waiver of notice or proofs of loss, notwithstanding a stipulation in such submission that it shall not operate as such waiver, is furnished by the case of Gale v. Insurance Co., 33 Mo. App. 664. The answer of the defendant does not affirmatively allege a forfeiture for failure to file proofs of loss; such answer admitting that they were received at the date fixed in the complaint, which was subsequent to the 60 days, but denying that the plaintiff has complied with the conditions of the policy. Al. though we think that the question as to a waiver by implication is

* See note at end of case.

close, yet, in view of the issues, and the way in which this ques tion was presented, we think that the trial judge was not obliged to dismiss the complaint; and, upon the same motion being made at the close of the case, the additional reason was then furnished by the circumstance appearing that after the appraisers had failed to agree, but within the time limited for filing proofs of loss, the defendant sent three appraisers, who made out a detailed statement of the loss, after fully interrogating the plaintiff upon the extent of her claim. Our conclusion, therefore, is that the judgment is right, and should be affirmed, with costs. All concur.

NOTE. In the action by Joseph B. Koller against the German-American Insurance Company, in the superior court of New York city, the following opinion was delivered by McAdam, J., (January, 1893,) on a motion to dismiss complaint in the nature of a demurrer: "The action is on a fire insurance policy, and the complaint, properly construed, alleges that the plaintiff performed all the conditions of the policy on his part, by serving on the defendant, March 14, 1891, notice and proofs of loss, which were received, accepted, and retained by the defendant without objection. The fire occurred December 26, 1890, so that the proofs of loss were served seventy-eight days after the fire, while the policy, which is annexed to and made part of the complaint, requires that such proofs be served within sixty days after the occurrence of the fire. This is a condition precedent to any right of action. McDermott v. Insurance Co., 44 N. Y. Super. Ct. 221; Underwood v. Insurance Co., 57 N. Y. 500; Blossom v. Insurance Co., 64 N. Y. 162; Quinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31. True, the condition may be waived; but neither excuse for nonperformance nor waiver is pleaded, unless it is to be inferred from the allegation that the proofs were received, accepted, and retained by the defendant without objection;' and in this regard the plaintiff has failed to recognize the obvious distinction between acts amounting to waiver before breach or forfeiture and those occurring afterwards. The distinction is clearly stated in May, Ins. (3d Ed.) $ 464. See, also, Wood, Ins. (20 Ed.) p. 941; Brown v. Assurance Corp., 40 Hun, 101, 107; Blossom, v. Insurance Co., supra. The books contain cases wherein the courts have held that the retention, without objection, of proofs of loss timely served, is a waiver of all technicalities or informalities which might have been corrected if they had been promptly pointed out, (Titus v. Insurance Co., 8 Abb. N. C. 315, 81 N. Y. 410; Richards, Ins. § 85;) and wherein proofs have been held waived altogether, where the company led the insured to suppose that none would be required, (Lowry v. Insurance Co., 32 Hun, 329;) or by its conduct led to delays, which it afterwards complained of, (Van Allen v. Insurance Co., 10 Hun, 397, affirmed 72 N. Y. 604; Goodwin v. Insurance Co., 73 N. Y. 480; Bishop v. Insurance Co., 130 N. Y. 488, 29 N. E. 844;) or where the company, in advance, unconditionally refused to pay anything. There are cases also where the proofs were not served in time, and the objection was deemed waived because the company retained the proofs, and puts its refusal to pay on other grounds. O'Reilly V. Assurance Corp., 19 N. Y. Wkly. Dig. 147; Owen v. Insurance Co., 10 Abb. Pr. (N. S.) 166, note; Bennett v. Insurance Co., 15 Abb. N. C. 234. The headnote to Brink v. Insurance Co., 80 N. Y. 108, intimates that the mere intention of proofs served too late amounts to a waiver of the objection; but the decision of the court does not sustain the intimation. The court holds that a company may refuse to pay a loss without specifying any ground, and, when sued, may insist upon any available ground; but if the company plants itself upon a specific defense, and so notifies the assured, it cannot retract after he has acted on its position, and incurred expense in consequence of it. In that case the company accepted the proofs after the time had gone by, examined the insured in respect to them, and decided not to pay the loss upon the ground of fraud, and so declared to the assured. The company, at the trial, sought for the first time to raise the question of the

time of filing the proofs of loss, and the court held that by its conduct it was estopped from so doing. No new consideration is required to support the waiver, and it may be established by proof of acts or conduct, even after forfeiture, recognizing the continued validity of the policy, and indicating an intention to waive such condition. Prentice v. Insurance Co., 77 N. Y. 483; Goodwin v. Insurance Co., 73 N. Y. 480; Titus v. Insurance Co., 81 N. Y. 410; Brink v. Insurance Co., supra; Weed v. Insurance Co., 133 N. Y. 394, 31 N. E. 231. While a waiver of a condition of forfeiture need not be based upon a technical estoppel, yet, in the absence of an express waiver, some of the elements of an estoppel must exist,-the insured must have been misled by some action of the company, which caused the omission to comply with the condition, or it must have done something, after knowledge of a breach of the condition, which could only be done by virtue of the policy. Armstrong v. Insurance Co., 130 N. Y. 560, 29 N. E. 991; Ronald v. Association, 132 N. Y. 378, 30 N. E. 739. Forfeitures plainly incurred, and not waived, must be enforced by the courts. Quinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31. In the present case, waiver is not alleged; nor is it claimed that the defendant, by any act of its officers or agents, dispensed with the proofs, or with due and timely service thereof, or that it put its refusal to pay on any specific ground which recognized the continued validity of the policy. Mere silence at a time when it was not required to speak is not a waiver, nor evidence from which waiver may be inferred, (Armstrong v. Insurance Co., supra;) so that the mere retention of proofs served after the time limited for their service is not performance of the condition precedent. No one would seriously contend that the indorser of a promissory note would be held to have waived timely service of notice of protest by the mere fact of retaining a notice served eighteen days after the time legally appointed for such service. Some affirmative act or expression recognizing continuing liability would be necessary. Silence would not be sufficient. And yet there is no substantial difference between the case put and the one at bar. The demurrer to the complaint must therefore be sustained, unless (1) within ten days the plaintiff amends his complaint by striking out the special allegation of service of the proofs on March 14, 1891, leaving the cause of action rest on the general allegation of performance; or (2) by omitting allegations of performance, and alleging waiver of performance, or excuse for nonperformance, (Oakley v. Morton, 11 N. Y. 25; Garvey v. Fowler, 4 Sandf. 665; Hosley v. Black, 28 N. Y. 438; Baldwin v. Munn, 2 Wend. 399; Crandall v. Clark, 7 Barb. 169; Baxter v. Insurance Co., 44 Hun, at page 185;) or (3) by amending in such manner or form as he may be advised to bring the case within the authorities applicable to the facts; that the allegata and probata may agree, (Riggs v. Chapin, (City Ct. N. Y.) 7 N. Y. Supp. 765;) the amendment to be made on payment of $20 costs, (the trial fee of an issue of law,) and without prejudice to the proceedings already had.

(6 Misc. Rep. 249.)

WARNER V. WARNER et al. (Supreme Court, Special Term, Monroe County. December, 1893.) ABATEMENT-ANOTHER ACTION PENDING.

Pendency of an action for partition, in which summons has not been served on one of defendants therein, is not a ground for the abatement of a subsequent action for the same cause, brought by such defendant in the first action against the other parties.

Action by George Warner against Arsino B. Warner and others for partition. Defendant Arsino B. Warner alone appears and answers, pleading in abatement that another action is pending between the parties for the same cause. Judgment for plaintiff.

T. D. Wilkin, for plaintiff.
Arthur E. Sutherland, for defendant.

RUMSEY, J. This action was begun on the 3d day of July, 1893, by the service of summons, and the usual other proceedings by which an action of this nature is commenced. Its object was for the partition of certain property situated in the county of Monroe. No other defendant except Arsino B. Warner appears; and he answers, admitting all the facts alleged in the complaint, and setting up as a defense only that another action is pending for the same cause between the same parties. The single question presented is whether that defense can stand upon the facts.

The undisputed facts are that on the 31st day of March, 1893, Arsino B. Warner caused to be filed in the clerk's office of Monroe county, summons, complaint, and notice of the pendency of action for the partition of the same property which is sought to be partitioned in this suit. The parties to that action are the same as in this action, except that the plaintiff in that action is Arsino B. Warner, and George Warner is a defendant. On the day on which the notice of pendency was filed, summons was served upon one of the defendants, and shortly thereafter summons was served upon other defendants. George Warner was not served, nor did he know that any defendant had been served with summons, but he did know that complaint and notice of pendency was filed. On the 3d day of July, 1893, that being the condition of Arsino Warner's action, George Warner caused this action to be begun, and summons to be served upon the proper parties. Thereupon, and after summons in George Warner's action had been served upon him, Arsino Warner completed the service of the summons in his action by serving those defendants whom he had not served before, including George Warner; and then he answers, setting up the defense that another action is pending for the same cause between the same parties. There is no doubt that, if his action was pending at the time when this action was begun, it is a complete answer to the plaintiff's suit. The only question presented, then, is whether, as against George Warner, Arsino B. Warner's action had been begun on the 3d day of July, when summons in this action was served upon Arsino Warner.

In ordinary cases, it is a proposition not to be disputed, that under the Code the mere issuing of summons is not the commencement of an action, for ordinary purposes. Kerr v. Mount, 28 N. Y. 659. It is quite true that for certain purposes the court is deemed to have acquired jurisdiction by the granting of a provisional remedy. Code Civil Proc. § 416. But that jurisdiction is conditional, and it is liable to be lost unless it is followed by the actual service of a summons. The section of the Code above cited provides expressly that a civil action is commenced by the service of a summons. It necessarily follows, from that, that unless the summons has been served the action is not commenced, as to any given defendant, and so the courts have held. Haynes v. Onderdonk, 5 Thomp. & C. 176; Boylston v. Wheeler, Id. 179. Indeed, although it was provided in the Code of Procedure (section 139) that the courts should be deemed to have acquired jurisdiction "from the time of the service of the summons in a civil action, or the allowance of a provisional remedy, still it was then held that the action was commenced for the purpose of acquiring jurisdiction over the defendant only by the service of summons, and that until summons was served the court had no jurisdiction to enter judgment against a defendant, although a provisional remedy had been allowed against him. Ex parte Griswold, 13 Barb. 412. So, under the Code of Procedure, for several years, there was no provision as to when the notice of pendency should become operative, and it had been held that it only became operative, as to any defendant, after the service of summons upon him. In applying that rule, it was held that after the filing of lis penders and complaint, but before service of summons upon him, a person named as defendant in a foreclosure action, having deeded away his interest by recorded deed, and being afterwards served with summons, his grantees were not bound, because the court had. not acquired jurisdiction over him for any purpose until the service of summons upon him. Trust Co. v. Dickson, 9 Abb. Pr. 61. The rule was laid down by Judge Ingraham, in that case, that, until summons was served upon each defendant, jurisdiction, as to him, was not acquired. Certainly, an action cannot be commenced, as to any man, until such jurisdiction has been acquired that, without doing anything more, a judgment can be entered against him, either personally, or such a judgment as would bind his interest in the property which is the subject of the action. So long as neither of these things can be accomplished, the party cannot be said to be in court, and the action has not been commenced against him. It is claimed in this case that the action was begun in such a way as to give the court jurisdiction by the filing of the notice of pendency of action and the complaint and service of summons upon one of the defendants. That is undoubtedly true as to all those persons who were served with summons, but until summons was served upon George Warner the court, certainly, had no jurisdiction over him. There was nothing to prevent the plaintiff in that action from procuring an amendment of the summons and the other proceedings, and striking out his name as a party, if he had seen fit to do so; and if judgment happened to be entered without any further proceedings in the matter, while it would have been good as against every party served, it would have had no effect upon George Warner's interests. As to him, certainly, until summons was served upon him, the action was a complete nullity. It was so held in the case of Haynes v. Onderdonk, 5 Thomp. & C. 176. In that case the court held that the filing of a copy of the summons and complaint, with a notice of pendency of action, was not a commencement of the suit, for any other purpose than that of affording constructive notice to subsequent purchasers from the defendants.

v.27 N.Y.s.no. 2-11

For the purpose of preventing the running of the statute of limitations, the Code provides that the delivery of the summons to the sheriff, with the intention that it shall be actually served, is equivalent to the commencement of the action. Code Civil Proc. $ 399. But it is to be noticed that such delivery is not called a commencement of the action, but it is called, in that section of the Code, “an attempt to commence an action," and that section is to be limited to the statute of limitations, and not to be further extended. Trust

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