WHAT IS “IMMEDIATE NOTICE” FIRE LAW?
A fire insurance policy issued by the Continental Fire Insurance Company to Henry Thoesen was transferred by the company’s consent to George Solomon, Thoesen’s general assignee, and soon after, on the 16th of December, 1893, the building which was insured was destroyed by fire. In an action by Solomon against the company to recover the loss, there have been three trials, though the only controverted question was whether the plaintiff had complied with the terms of the policy, which required that immediate notice of loss should be given. On the first trial the complaint was dismissed. After a reversal by the General Term of the late Superior court, the second trial resulted in a disagreement of the jury. The referee before whom the third trial was had reported in favor of plaintiff.and that decision has now been affirmed, by the First Appellate division by a divided court. Though fiftythree days elapsed before notice was given to the company, the referee found that by reason of special circumstances the delay was excusable and justifiable. The policy in suit with others, was in a safe on the premises which were burned, and on account of that the plaintiff was unable to find or get at it until fifty days thereafter. During that time he had no knowledge of the names of the companies in which he was insured. As soon as the policy was feund, and the company’s name and address ascertained, the notice of loss was sent. For six days after the fire the safe was buried in the ruins, and after it had been opened at the manufacturer’s the contents were put in boxes and caried on a truck and placid in a vault for safe keeping. The fastenings of the packages had become scorched and the papers were disarranged. They were stuffed into pigeon holes, and the policy had slipped between the framework of a pigeon ho(e and the wall behind,so that it was hidden from ordinary observation. It was only found by chance,long afterwards,although search had been diligently made for it Justice McLaughlin, who gives the decision on appeal, holds that the finding of the referee, that sufficient notice had been given, should not be disturbed, especially as the company had had immediate actual notice fiom its agents, the fire patrol, so that it could take precisely the same measures for its protection that would have been afforded had written notice at that time been received from plaintiff Justice Barrett, in a dissenting opinion, held that in any view of the circumstances, as presented by the plaintiff himself, there was inexcusable delay. To treat such a notice as given within a reasonable time was substantially to cancel the condition, or else to treat it as an idle or unnecessary ceremony.