#### Stephen Hill, Respondent, *against*The London Assurance Corporation, Appellant.

(Decided April 7th, 1890.)

A policy insuring against fire property while contained in a certain dwelling, stipulated that no officer, agent, or other representative of the insurance company should have power to waive or be deemed or held to have waived the provisions and conditions of the policy unless such waiver should be written upon or attached to the policy. The insured delivered the policy to an agent of the company to procure its consent, required by the policy, to a removal of the insured property, and the agent returned it to him without indorsement or other writing of any kind, informing him that all proper formalities had been complied with, and that the policy would cover the property in its new location; and the insured thereafter removed the property. *Held,*that the insurance was forfeited.

A policy of insurance against fire expressly provided that, in case of loss, the insurance company might cause investigation and appraisal to be made *121without being deemed to have waived any forfeiture. *Held,*that, after a fire, a reference of the matter to an adjuster for investigation and appraisal did not waive a forfeiture.

Appeal from a judgment of the General Term of the City-Court of New York affirming a judgment of that court entered, on the verdict of a jury and an order denying a motion for a new trial.

The action was brought upon a policy of insurance, against fire, of certain household furniture and other personal property of plaintiff “ while contained in the frame dwelling situate, detached, at Bay Side, Long Island.” The policy contained the following clause: “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have proper power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” The policy also provided that, in case of loss, the company might cause investigation and appraisal to be • made without being deemed to have waived any forfeiture.

The testimony on behalf of plaintiff was to the effect that, on or about August 9th, 1887, plaintiff took the policy to the general agent of defendant, through whom it had been originally issued to him, and informed the agent that he was about to remove the insured property to another place, and requested the agent to procure the consent of defendant to such removal, or the waiver of any forfeiture that might be incurred thereby; that thereafter the agent returned the

*122policy to plaintiff, and informed him that all proper formalities had been complied with and that the policy would still cover the property in the new location; and that during August and September, 1887, plaintiff removed the property to his new dwelling at Bay Side, Long Island, -where it remained until January 31st, 1888, when it was destroyed by fire. No indorsement or other writing of any kind was ever made on or attached to the policy.

A motion by defendant to dismiss the complaint was denied, and the case submitted to the jury, which found a verdict for plaintiff. Defendant’s motion for a new trial was also denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying its motion for a new-trial, defendant appealed to the General Term of the City Court, which affirmed the judgment and order. From that decision defendant appealed to this court.

*J. Notman,*for appellant.

*C. A.*Clement, for respondent.

Larremore, Ch. J.

It is immaterial what our own views might have been upon the main question, if it had arisen here for the first time, because we think we must decide it on clear and unmistakable authority. We can discover no distinction in principle between the case at bar and *Walsh*v. *Insurance Co.*(73 N. Y. 5). In that case it was expressly provided in the policy that no officer, agent, or representative of the company should be held to have waived any of the terms and conditions of the policy unless such waiver was indorsed thereon in writing. The Court of Appeals held that this was a plain limitation upon the power of agents, and could mean “ nothing less than that agents shall not have the power to waive conditions except in one mode, viz., by an - indorsement on the policy.” The provision on that subject in the policy before us is, if anything, more explicit in its terms than the one under consideration in *Walsh*v. *Insurance Co.,*and all the reasons therein given for holding the plaintiff bound by such-*123condition apply here. The fact has not been overlooked that several later cases in the Court of Appeals have been distinguished from *Walsh*v. *Insurance Co., supra ;*but the reason for such distinction was that in such later cases the power and authority of the agent were not specially defined and limited, as they are in the case at bar. The ground taken is that as the company itself could dispense with a condition by oral consent as well as by writing, the general agent could do the same unless specially restricted. *Steen*v. *Insurance Co.*(89 N. Y. 316). But obviously the reason for such distinction does not exist in the case before us. The agent’s authority is restricted, if anything, more closely than in *Walsh*v. *Insurance Co.,*and we regard this case1 as controlling.

We think the learned trial judge also erred in holding under this particular policy that a waiver could be inferred by the reference of the matter-after the fire to the adjuster for investigation and appraisal. It is well settled that if, after knowledge of any alleged forfeiture, the company “ recognizes the continued validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived.” *Titus*v. *Insurance Co.*(81 N. Y. 410). But this doctrine of implied waiver cannot be invoked where, as in the policy under consideration here, there is an express provision that the company may cause investigation and appraisal to be made without being deemed to have waived any forfeiture. Defendant’s motion to dismiss the complaint should have been granted, and the judgment should be reversed and a new trial ordered, with costs to abide the event.

J. F. Daly and Btschobt, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.