On appeal from the Supreme Court, Union County Circuit.
For the appellant, John S. Forster.
For the respondent, Samuel Koestler and Melvin J. Koestler.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The plaintiff below, owner of an apartment house in the city of Elizabeth, Union county, insured the building, against the risk of fire, with the defendant and other companies and also took out with the defendant a rent loss policy, which insurance contract, in fact, and in all its particulars, was a standard fire insurance policy with a so-called rider approved by the commissioner of banking and insurance.
On May 28th, 1933, during the term of all of these policies, a fire took place and seriously damaged the building.
Immediate notice thereof seems, undisputedly, to have been given all the companies under all the policies.
On June 15th, 1933, one Hullenbach, an adjuster for the defendant-appellant, gave formal written notice to the respondent that the appellant company required formal proof of loss in accordance with chapter 340 (Pamph. L. 1911), under all its policies including the rent policy.
Proofs were timely made under all policies except the rent policy, the proof under which was not received by the appellant company until November 29th, 1933.
There appears to have been an investigation upon the part of the insurers as to the origin and cause of the fire because of which, and other delays, adjustments of fire losses were not reached until "the late fall of 1933," and a settlement of such losses not made until the middle of January, 1934. The repair and reconstruction of the building began at this time; some eight months after the fire. The appellant made no objection to, but received the proof of loss under the rent policy. It did not object to or refuse to receive it as being out of time until suit was commenced against it on February 2d, 1934, when by its answer it set up such failure as voiding the contract of insurance and a bar to the action against it.
The trial of the issue resulted in a verdict in favor of the plaintiff-respondent and from the judgment thereon the defendant below appeals, filing seven grounds of appeal.
These are argued in appellant's brief under two ...