On appeal from a judgment of the Supreme Court.
For the defendants-appellants, Kristeller & Zucker (Saul J. Zucker, of counsel).
For the plaintiff-respondent, Parsons, Labrecque & Borden (Theodore D. Parsons, of counsel).
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court, entered after a jury trial at the Monmouth Circuit, in a suit on three policies of fire insurance.
The plaintiff is the widow and administratrix of the estate of Louis Krauss, who was the named assured in policies of fire insurance issued by each of the three defendant-appellant companies. The policies, which aggregated the face sum of $5,000, covered household furnishings in the home of Mr. and Mrs. Krauss in Asbury Park. On October 2d, 1933, while the Krausses were visiting in New York City, a fire occurred at their home. Mr. Krauss, being informed of the fire the next morning, went to Asbury Park and returned that night, October 3d, to New York. The following morning he again started for Asbury Park, and since that day, October 4th, two days after the fire, he has not been seen or heard from. After waiting the period of seven years, after which presumption of death arises, Mrs. Krauss took the statutory proceedings to have him declared presumed to be
dead and on May 3d, 1941, he was adjudged legally dead and shortly thereafter she took out letters of administration. R.S. 3:42-1, et seq. She then brought suit on the policies.
When Krauss went to Asbury Park the day after the fire he called upon his attorney, Leon Anschelewitz, and delivered the insurance policies to the attorney, requesting him to take the necessary steps to claim the loss. Anschelewitz recommended retaining a public fire adjuster, one Charles Silbergleit, who was consulted. Subsequently, and on November 29th, 1933, less than sixty days after the fire, a proof of loss was filed with the local representative of the insurance companies. This proof of loss was not executed by Krauss because he had disappeared, but was signed by Anschelewitz as attorney.
Under date of January 29th, 1934, the insurance companies in a letter to Anschelewitz acknowledged receipt of the proof of loss and rejected it on four grounds, namely, (A) because it was signed by Anschelewitz as attorney in fact but there was no evidence of his authority to so act; (B) the origin of the fire was not correctly stated; (C) the statement of value of the property was inaccurate; and (D) the claimed loss was excessive. This letter also contained a demand that "subject to the conditions of their respective contracts and without waiving any of the conditions and provisions thereof, the assured, Louis Krauss, submit to an examination under oath at a time and place to be later designated."
On March 28th, 1934, the companies wrote Anschelewitz demanding that Krauss appear for examination on April 12th, 1934. This demand, of course, was not complied with and could not be, and on April 23d, the companies wrote Anschelewitz that by reason of the failure of Krauss to appear they considered that he had waived any claim under the policies.
At the trial, defendants moved for a nonsuit upon the opening, for a nonsuit at the close of plaintiff's case and for a directed verdict. The grounds were (1) that no proof of loss had been filed; (2) that the demand for ...