#### McMasters and Bruce, *vs.*The Westchester County Mutual Insurance Company.

When there is a loss by fire upon insured property, and the insurer refuses to pay, placing hid refusal, not upon defects in the preliminary proofs, but upon other grounds, such as a *change*in interest in the property, the insurer is not allowed to object on the trial of the cause to the insufficiency of the proofs, being deemed to have *waived*such objections.

Whether a sale of the interest in the property by one owner to another, who ar *& jointly*insured, affects the policy so as to prevent a recovery, *quere.*

The practice of submitting certain questions to a jury, to be answered by them in the nature of a *special verdict,*approved.

This was an action on a *policy of*insurance,• tried at the Westchester circuit, in April, 1840, before the Hon. Charles H. Ruggles, one of the circuit judges.

The plaintiffs were insured against loss by fire to the amount of $4,000, upon a stock of joiner’s tools and other property, in a work shop attached to the state prison at Sing Sing, for the period of one year from the 12th December, 1837. On the 1st July, 1838, the shop took fire, and property insured, to a large amount, was destroyed. On the 13th *July,*the plaintiffs gave notice of the loss to the defendants. Repeated interviews were had between McMasters, one of the plaintiffs, and certain agents of the defendants, from the time of the fire down to the 26th day of *July,*when the latter, believing that the *ownership*in the property had been changed since the policy was effected, by *Bruce*selling out his interest to *McMasters,*and the latter transferring the share so acquired to one of his sons, ceased farther intercourse with McMasters, *and recommended to [ *380 J him to take such course in the premises as should be advised by counsel. On the 27th July, *McMasters*served upon the secretary of the company an *account*of the loss, an *affidavit*made by him verifying the account, and stating the amount of the loss, and a *certificate*of a justice of the peace that he ■ was acquainted with the character and circumstances of *McMasters,*(saying nothing as to Bruce,) and certifying the loss at $4,000. A *seal*was not attached to this certificate, which was given under a *condition*in the policy in the usual form, requiring an account of loss and a certificate of a magistrate, and that the latter should be under the hand and *seal*of the magistrate. On the trial of the cause," the above, facts were shown, and the plaintiffs also produced a letter, from the president of the company, dated 21st *December,*1838, addressed to McMasters, in these words: “ To yours of the 10thinst., received yesterday, I reply that your letter of the 29th July last, stating that you had sustained damage by fire, was laid before the committee for advisement, and that committee reported that in its opinion your claim was *invalid,*and ought not to be paid. You *290are therefore left to pursue such course in the premises as you may be advised.” Upon this evidence the plaintiffs rested, and the defendants moved for a non-suit, on the ground of the insuEcieney of the preliminary proofs ; which motion was denied. Evidence was then given on both sides in respect to the transfer of the *interest*of Bruce to McMasters, and of the assignment of the same by the latter to his son. The questions arising upon the preliminary proofs *were submitted by the counsel of both parties to the jury.*The judge charged the jury that the plaintiffs were bound to use due diligence in giving *notice*of the loss, and submitted to them to determine whether, under the circumstances of the case, there had been an unreasonable delay ; as to the want of a *seal*to the certificate of the magistrate, he deemed the defect fatal, could it not be considered as waived, and he submitted the question to the jury whether this and all other defects in the preliminary proofs might not be so considered. In. relation to the transfer to McMasters, of *Bruce’s interest*in the property insured, he ex- [ *381 ] pressed the ^opinion that if made, it was not such a change of interest as to affect the plaintiffs’ right to recover; but if the property had been subsequently transferred to McMasters’ son, the defendants were entitled to the verdict. The judge also submitted the following ques-.' tions to the jury, and requested that they might be answered separately in the verdict which they should render, viz : 1. Was the notice of loss given in due time ? 2. Was there a waiver by the company of any irregularity in the preliminary proofs ? 3. Was the partnership between the plaintiffs dissolved before the fire ? 4. Did McMasters purchase the whole interest of Bruce ? 5. Did the son of McMasters become a partner with his father ? The jury, on their return into court, answered the two first interrogatories ' in the affirmative, and the others in the negative, and found a verdict in favor of the plaintiffs for $4,355.53 damages, including interest. The defendants having excepted to the charge and objected to the questions being submitted to the jury, which had been answered by them, moved for a new trial.

*M. T. Reynolds,*for the defendants.

*T. M. Lee,*for the plaintiffs.

*By the Court,*

Nelson, C. J.

Whether the learned judge was correct or not, in charging that the plaintiff, *McMasters,*was entitled to recover for the whole loss in the names of the plaintiffs, if he had purchased the share of his co-partner before the fire, is a question not material to decide ; because he submitted the distinct fact to the jury, upon which the point of law rested, and they have found that no such purchase was made. This finding renders the opinion expressed wholly unimportant in the case.

*291The course the judge took on the trial in submitting certain questions to the jury, with a view to avoid the necessity of a second trial, was objected to : but such course is not uncommon at the circuits where a doubt is entertained upon the law ; it cannot operate to the prejudice of either party, and frequently avoids the trouble and expense of a new trial. It is "in the nature of a special verdict, which the jury may always [ *382 ] find. 2 *R. S.*421.

I think the judge was right, also, in submitting to the jury whether the company were not concluded from taking exceptions to the preliminary proofs. Although repeated communications had taken place with the officers and agents of the company, and in some instances, in pursuance of directions from the board, after the preliminary proofs were delivered, no such ground was taken. On the contrary, the fair inference from all the proof in the case is, that other grounds were put forth and mainly relied upon to defeat the recovery. The law is well settled, that if there be a formal defect in the preliminary proofs, which could have been supplied had an objection been made by the underwriters to payment on that ground, if they do not call for a document, for instance, or make objection on the ground of its absence or imperfection, but put their refusal upon other grounds, the production of such further preliminary proofs will be considered as waived. 16 *Wendell,*401; 10 *Peters,*507. There are few cases that come before us, presenting stronger claims to the application of this rule than the present one, or that better exemplify its propriety and justice. The agents were neighbors of the assured, in daily communication with him on the subject of his claim ; some of them obviously seeking for the means of defeating it by enquiries into the situation and title of the property destroyed, and by interrogation of the parties, and yet no distinct objection taken as to the preliminary steps, that might now be regarded as fatal. Had the objection been made in the course of these interviews, the defects might at once have been remedied, as is obvious from the authorities already referred to.

New trial denied.