Berger v. Ætna Life Insurance

Fitzgerald, J. It is admitted that the action was not brought within the time limit provided by the policy, but plaintiff claims that this provision was waived by the defendant because of hopes held out that the matter would be amicably adjusted. It is well settled that this provision, like all others intended for the benefit of the insurance company, may be waived. Sullivan v. Prudential Ins. Co., 172 N. Y. 483; Ames v. New York Union Ins. Co., 14 id. 254. Nor is any positive act of the company intended to induce postponement necessary. Ripley v. Ætna Ins. Co., 30 N. Y. 136. The evidence relied upon by respondent to establish waiver is that he had some conversation with Dr. Archer, a surgeon and adjuster for the company, about his claim and that he received the letter in evidence from Archer, which letter [386] merely recites that the writer could not keep an appointment with plaintiff at a stated time, hut that a future appointment could he readily arranged over the telephone. Assuming that Archer had the right to waive the condition, the proof of his having done so is far from satisfactory. Plaintiff’s proof of claim was filed October 27, 1903. Archer’s letter is dated October twentieth of the same year and, obviously, must have been written in reply to a communication regarding plaintiff’s claim before its formal presentation. The only other evidence is that, thereafter, plaintiff called on Archer three or four times, the last occasion being May, 1904. This suit was not commenced for nearly a year afterward. But apart from the failure of proof, it has been directly held that an adjuster for an insurance company has no authority to waive a provision of the insurance contract. Emanuel v. Maryland Casualty Co., 47 Misc. Rep. 378; Weed v. L. & L. Fire Ins. Co., 116 N. Y. 106. Scott and Bischoff, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.