Opinion
June 28, 1927.
Appeal from Supreme Court of Niagara County.
Leggett Thibaudeau [ Augustus Thibaudeau of counsel], for the appellant.
Shire Jellinek [ James M.H. Wallace of counsel], for the respondent insurance company.
Present — HUBBS, P.J., CLARK, SEARS, CROUCH and SAWYER, JJ.
Plaintiff was the owner of a business building in the city of Niagara Falls which was insured by defendant against loss by fire, the policy containing, among other provisions, one that "If a building or any material part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease."
In April, 1921, the foundation of the building became weakened by excavations on the adjoining lot with the result that the front part of the building, extending back for about thirty feet, ultimately collapsed. The building was about seventy-five feet long by twenty-five feet wide and the jury has found that the portion which fell was a material part thereof.
Defendant's local representative at Niagara Falls, learning of the fall of the building, wrote plaintiff that, pursuant to its provisions, the policy was canceled and under its terms would continue in force for five days only, after receipt by plaintiff of the notice. Plaintiff thereupon insured what remained of the building elsewhere, the insurance to take effect at the expiration of such five days. Shortly afterwards, and before the new insurance became effective, the remainder of the building was practically destroyed by fire. No serious question is raised but that by its terms the policy and all insurance thereunder normally became ineffective with the fall of the building.
Plaintiff bases his action upon the theory that the notice to him from defendant's local agent was a waiver and operated as an estoppel against defendants claiming the benefit of that clause of the policy.
It is not necessary to decide whether defendant through an officer or agent having general authority could, in that manner, revive an extinguished policy obligation or be estopped from defending a claim on the ground that the insurance had ceased and determined. We need go no further than to hold that such authority is not vested in a local insurance agent. ( Seldin v. Caledonian Ins. Co., 121 Misc. 444.) The case contains conclusive evidence that defendant's Niagara Falls representative was an agent of purely local and limited authority; that he had no power to waive any provision or condition of the policy plaintiff knew or should have known, for the contract contained the express provision that "No one shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement added hereto, nor shall any such condition or provision be held to be waived unless such waiver shall be in writing added hereto." Much less was he empowered to bind defendant by an estoppel. The word as used in this action is really a misnomer. Plaintiff under that term attempts to create a new contract of insurance after a previous contract by its terms had expired. It is not a situation where the insurance company can be held to have waived a right or advantage under an existing policy or by its conduct estopped itself from asserting such a right. ( Draper v. Oswego County Fire Relief Assn., 190 N.Y. 12.)
Other questions have been argued but in view of our determination that defendant has not waived its rights under the lapsed policy nor estopped itself from asserting them, they need not be here considered.
The judgment and order should be affirmed, with costs.
All concur.
Judgment and order affirmed, with costs.