Matthews v. American Central Insurance

Follett, J. : This action . is .defended on three grounds : (1) That it- was not begun within twelve months next after the fire; (2) that written notice of" the loss' was not immediately given; (3) that á verified statement of the loss was not furnished within sixty days after the fire. The following are the provisions of the policy under which these defenses arise': . “ If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith" separate the damaged and undamaged . personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article [341] and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to. by said insured. * * * “ No suit or action on this policy, for the recovery of any. claim, shall be sustainable in any court of law or equity until after full, compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” It is settled in this State that, parties to contracts may prescribe the time within which either party must, if ever, bring actions to enforce the contracts, and that such stipulations are not against public policy, and are valid. This rule has often been applied in favor of insurers and against the insured (Wilkinson v. First National Fire Ins. Co., 72 N. Y. 499), and it has also been applied against the insurer and in favor of the insured. (Wright v. Mutual Benefit. Life Association, 43 Hun, 61; affd., 118 N. Y. 237.). The plaintiff seeks to evade the effect of this stipulation by .availing himself of the exceptions contained in chapter 4 of the Code of Civil Procedure (Limitations), but when the parties limit the time by contract in which an action must be brought thereon, their rights are to he determined by the contract, and the Statute of Limitations has no application. The statute so provides: “ Sec. 414. The provisions of this chapter apply and. constitute the only rules of limitation applicable to. a civil action or special proceeding, except in one of the following cases : “ 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.” In Wilkinson v. First National Fire Ins. Co. (suqpra) the plaintiff sought to escape the effect of the stipulation by reason of a provision in" the. Revised Statutes saving the rights of parties from the effects of those statutes when they were stayed by an injunction from bringing an action.- The court said: “ This provision does not aid the plaintiff. The exception has no application where a limitation is prescribed by the contract of parties, but only applies to cases governed [by] the limitation in the general law.” In Riddlesbarger v. Hartford Ins. Co. (7 Wall. 386) the plaintiff attempted to escape the effect of such a stipulation by invoking [342] an exception contained in the Statute 'of Limitations of the State of Missouri, where the contract was made and sought to "be enforced. The court held that the statute had no application to the case, saying : “ In the second place, the rights of the parties flow from the contract. That relieves them from the general limitations of the statute, and as a consequence from its exceptions also.” The section of the Code above quoted and the two cases cited, one in the Court of Appeals in this State, and the other in the Supreme Court of the United States, would seem to be sufficient authority on this proposition. Again, the fire occurred April 20,4892, four months and eighteen days after the death of the insured (plaintiffs testatrix), and no cause of action accrued to her, and. this case does riot fall within any of the exceptions of chapter 4 of the Code of Civil Procedure (Limitations) extending the time in which actions may he brought by the representatives of decedents on causes of action accruing before death.. The delay in bringing this action was not induced by any act on the part of the defendant, but was due solely to the neglect of those who should have procured the appointment of a representative for the insured. No reason is given why a temporary administrator was not applied for and appointed, pending the contest over the will. Had tliis been done proof of loss might have been given and an action brought within the period prescribed by the policy. The defendant’s exceptions should be sustained, and as a new trial would be unavailing, the complaint should be dismissed, with costs. Hardin, P. J., and Green, J., concurred;. Adams and Ward, J.J, dissented.