[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 279 There were two items of evidence, only, upon which the verdict of the jury with respect to the amount of damages, could have been based, viz.: (1) The award of the arbitrators assessing it at $1,225, and (2) the proofs of loss in which it was stated to be $1,250. The court in charging the jury directed them to bring in a verdict for the amount appraised by the arbitrators, with interest from September 5, 1882, in case they should find that the arbitrators had not exceeded their authority, in making the award. The jury found for that sum, and the inference is quite conclusive that their verdict was founded upon the evidence furnished by the award, and not upon that contained in the proofs of loss. It is evident, therefore, that the defendant was not injured by the charge *Page 281 of the trial judge to the effect, that if the jury found that the arbitrators exceeded their authority in making the appraisal of damages, the plaintiff was entitled to whatever damage he had suffered by the loss in question. There being no legal evidence of the amount of such damages, aside from the appraisal, an exception to the charge would have been fatal to the judgment, but for the fact that it affirmatively appears that it did not influence the verdict. (Thorne v. Turck, 94 N.Y. 90.)
The objection that the action was prematurely brought is not sustainable. The policy provides that the loss shall be payable, sixty days after due notice thereof, and proofs of the same, are received by the insurers. This clause evidently refers to the proofs of loss, required by the policy to be made by the insured, within thirty days after the fire, and not to any act of the plaintiff which might, or might not, be thereafter required of him, under the policy, by the insurers. The clause providing that the one year limitation, shall run against the assured, notwithstanding the pendency of proceedings to appraise damages, might otherwise enable the insurers by inaction and delay, to retard, if not defeat, any recovery on the policy. The provision authorizing an extension of the time of payment of a loss, until after certain proofs, declarations and certificates, are produced, seems to exclude the hypothesis that the defendant was also to have sixty additional days delay, after such proofs had been made. This provision contemplates a postponement of the right to bring an action only, until such proofs are made, and rebuts the inference that any longer delay was intended.
The action was not commenced until September 9, 1882, nearly four months after proofs of loss were served, and several days after the completion of the award of the appraisers, and was not, we think, prematurely brought. Neither, did the court commit any error in excluding the defendant's offer to show that the plaintiff's co-tenant had received an award, from other insurance companies, for a loss upon his individual interest in the property damaged, which included the expense of removing *Page 282 the machinery, preparatory to the work of repairing the real property injured. That fact did not affect the liability of the defendant upon its policy to the plaintiff, and he was entitled to recover whatever it might be necessary for him to pay, in the restoration of the interest insured, to its original condition. The sole question in this case in respect to the item objected to is, whether the plaintiff might be subjected to the expense of making the removal referred to. This question was not affected by a proceeding between strangers to this action, in which the plaintiff took no part and had no interest, but was to be determined by the provisions of his policy.
As a defense to the action, the defendant offered to prove that on the 9th of September, 1882, it served upon the plaintiff a written offer, electing to rebuild or repair the property damaged. It then appeared in proof, that on the sixth day of September the defendant had refused to pay the award in question, and that nearly four months had elapsed since the service of the proofs of loss. The evidence was objected to and excluded by the court, to which ruling the defendant excepted. This evidence was claimed to be admissible, under the clause in the policy, providing that it should be optional with the company, to repair or rebuild the property damaged within a reasonable time, giving notice of their intention so to do, within sixty days after the completion of the proofs therein required. The proofs therein referred to are evidently the proofs of loss, unconditionally required to be made by the assured, according to the terms of the policy, and do not refer to the subsequent optional proceedings provided by the policy, for ascertaining the amount of a loss, which may or may not be required to be taken, in any given case. It would be an unreasonable construction of this contract, to extend the exemption of the defendant from suit, and give it a right to defeat an action already brought, to a period which it had the power to prolong indefinitely, even to the running of the limitation, provided by the policies in favor of the insurers. The words "proofs" and "proofs of loss" are used indiscriminately in several places in the policy, and wherever used, obviously refer to the particular statement of the loss required *Page 283 by the policy to be signed and sworn to by the assured within thirty days after the fire. Any other construction would involve the manifest absurdity of giving the assured a vested cause of action for his loss, and the defendant an indefinite right to defeat it, by a subsequent election to repair or rebuild the property damaged. We think this option, terminated when a right of action accrued to the assured, upon the policy by the expiration of the sixty days period of limitation, and the other express limitations therein provided.
The only remaining exception of any importance is that taken to the refusal of the court to direct a verdict in the defendant's favor upon the ground that the arbitrators exceeded their authority, in making their award. The court charged the jury that the arbitrators had no authority to go outside of the subject-matter submitted to them, and if they did so, their appraisal was not binding upon the parties. This direction was manifestly correct, unless there was undisputed evidence of an unlawful exercise of authority by the appraisers. We do not find such evidence in the case. The proof was in some respects obscure and conflicting, but we do not find any conclusive evidence that the arbitrators included in their award any item of damage not properly chargeable under the policy, to the defendant. The award was made for a gross sum, and nothing therein, shows the detailed items, of which it was composed. This was attempted to be established by the testimony of the appraisers, and proof of admissions made by one of them. There was no item of damage questioned by the defendant which was indisputably included therein, except that of the expense of removing machinery preparatory to making repairs. As we have already seen, such removal was a necessity in the work of restoring the premises to their original condition, and an allowance for its expense is clearly contemplated by the terms of the policy, providing that the cash value of the damaged property should not exceed the cost to the assured of replacing it. This provision seems to assume that the ascertainment of the cost of replacing, is a legitimate method of determining the amount of the damage. The fact that such machinery *Page 284 wholly belonged to some other person, did not necessarily exempt the plaintiff from the necessity and cost of making its removal. Even if the plaintiff had the right to require the owners to effect its removal, he was under no legal duty to await their action in doing so, or to enforce such right against them for the benefit of the defendant.
The existence of a contract between the plaintiff and other persons by which he could compel such persons to effect such removal, did not diminish the liability of the defendant upon its policy. If the removal was a necessity of the repairs required to be made, and the policy indemnified the plaintiff for the expense of making such repairs, it would seem that the consideration of the amount of such expense, was within the authority conferred upon the appraisers.
The point taken upon an attempted distinction between damages to flues and chimney is not justified by the evidence. The witnesses use the words indifferently and sometimes alternately, and the evidence fails to show affirmatively that the appraisers awarded for any loss in respect thereto which was not incurred.
The judgment should be affirmed.
All concur.
Judgment affirmed.