Opinion
November, 1893.
David Leventritt, for plaintiff (respondent).
Richards Heald, for defendant (appellant).
This is an appeal from a judgment of the lower court, entered upon a verdict of the jury rendered by direction of the court at the close of the plaintiff's testimony, and after defendant's counsel stated that he should not put in any testimony. It is conceded that a policy of insurance was issued to the plaintiff's assignor; that fire destroyed the property which was covered by the policy; that the company received and retains the premiums paid by the insured. It is claimed by defendant, however, that other insurance having been obtained without defendant's consent indorsed upon the policy, that the policy is void and that the plaintiff is not entitled to recover. Whatever rights the defendant had under the provision of the policy which provided that the policy should be void "if any additional insurance was procured on the property covered by the policy," were waived by the defendant.
It appears that one of the plaintiff's assignors called on the manager of the defendant and requested the said manager to indorse on the policy that other insurance had been procured, when said manager replied that it was not necessary. This, under the rule laid down in Pechner v. Phœnix Ins. Co., 65 N.Y. 195, was clearly a waiver.
An agent or manager who has the power to issue and cancel policies and indorse consents, certainly has the power to waive any condition in the policy. The proof clearly shows a compliance on the part of the plaintiff's assignors with the terms and conditions of the policy. The court had a perfect right to amend the complaint so as to increase the amount to that proven on the trial. The defendant did not object to the motion on the ground of surprise, and as the amendment did not change the cause of action the motion was a proper one.
The judgment must, therefore, be affirmed, with costs.
McCARTHY, J., concurs.
Judgment affirmed, with costs.