Opinion
October 7, 1938.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ. [ 167 Misc. 204.]
Order affirmed, with ten dollars costs and disbursements. Memorandum: If an insurance company, having knowledge of grounds of forfeiture, compels the insured to submit to an examination under a provision of the policy, it waives the forfeiture. ( Palma v. National Fire Insurance Co., 240 App. Div. 454, 457.) The assured must, however, establish that the company had full knowledge of the facts before he can take advantage of the defense of waiver. ( S. E. Motor Hire Corp. v. N.Y. Indemnity Co., 255 N.Y. 69, 72, 73, 75.) It is, therefore, important for the plaintiff to know what authority the Harold K. Foley, Inc., agency had when it issued the policy to him and what knowledge the defendant had on the subject of forfeiture before it examined plaintiff relative to the loss. The evidence on these subjects is necessarily in the possession of the defendant. On sufficient papers, the court granted an order for an examination of the defendant and for the production and inspection of pertinent papers and records. The order sufficiently safeguards the rights of the defendant and it should be affirmed. All concur, except Cunningham, J., not voting. (The order grants a motion for examination before trial.)