The policy of insurance upon which this action is founded, and which is known as a “ standard policy,” contains in addition to the usual requirement, that proofs óf loss shall be furnished within sixty days after the fire, the following provision : “ No suit or action on, this policy, for the recovery of any claim, shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”
It is not claimed that there has been a literal compliance with this requirement, and consequently at first' blush it would seem that the plaintiff must fail in his action; but this, as well as every other provision in a contract of insurance, is subject to a construction which shall be both just and reasonable, and which shall reflect common sense as well as good judgment.
It is an undisputed fact in this case that the fire which destroyed the property insured did not occur until nearly five months after the death of the owner. Mrs. Silvernail.
*360Prior to the fire the plaintiff, who was the executor named in Mrs. Silvernail’s will, duly filed the usual petition asking that such will might be admitted to probate and letters testamentary thereon issued to him. A contest on the part of some of the heirs at law resulted, and it was not until some two years thereafter that probate was granted! and letters were issued thereupon, and within the. sixty days ensuing, the plaintiff, as such executor, verified and filed the proper proofs of loss which were received' and retained by the defendant, without objection of any kind. Failing, to obtain any adjustment of the loss sustained, the plaintiff brought this action, after waiting a reasonable length of time, and this,, it seems to me, was, in the circumstances of the' case, a sufficient compliance with the requirements of the condition over which this controversy arises.
■ The law, in its interpretation of contracts, does not require impossibilities, and in this case I fail to see how the condition in question could have been complied with within the period of time fixed by the contract of the parties, for--either filing proofs of loss, or bringing an action upon the policy, because, owing 104116-death of the insured, there was no person in existence during the year following the fire who had any legal right to file such proofs or maintain the action. (Ang. on Fire & Acc. Ins. 403, § 389; Wymcm v. Prosser, 36 Barb. 368.)
In view of the rule established by the authorities just cited, and which 'has been frequently recognized and approved by the courts, it will hardly be contended, I think, that any person other than the •legal representatives of the insured would have had any standing in court to maintain an action for the loss sustained; and while it is possible that a temporary administrator might have been appointed within the period specified in the contract to bring such an action, the parties interested in the decedent’s estate were not entitled to such an appointment as a matter of right, and there is excellent authority fof saying that they were not bound to make the application as a condition of obtaining the amount covered by the policy. (Hall v. Brennan, 64 Hun, 394 ; affd., 140 N. Y. 409.)
It is no answer to this proposition to say that it would enable the representatives of a deceased party to delay the bringing of an action upon a policy of insurance indefinitely, for when' the element of *361laches is injected into an action it would, of course, come within the operation of a very different rule.
No ease has been called to our attention which decides the precise question here raised, that is, none which arises upon the same state of facts, but, as I read them, the books are full of cases in which a party has been excused from a literal performance of the terms of his contract where he was prevented from performing the same by circumstances beyond his control. The case of Semmes v. Hartford Ins. Co. (13 Wall. 158) is, perhaps, as nearly analogous as any which may "be cited. This was an action upon a policy of insurance containing a provision similar to the one in suit, and the plaintiff was prevented by reason of the civil war from bringing an action thereon within the time limited, and this was held to be a sufficient reason for non-compliance, the court (Mr. Justice Miller) saying: “ The defendant has made its own special and hard provision on that subject. * * * We have no doubt that the disability to sue imposed on the plaintiff by the war relieves him from the consequences of failing to bring suit within twelve months after the loss, because it rendered a compliance with that condition impossible. * * * That pa/rt of the contract, therefore, presents no bar to the plaintiff' s right to recover.”
The case of Longhurst v. Star Ins. Co. (19 Iowa, 367) was one where the policy in question was intended to protect a mechanic’s lien, and it contained a provision which limited the time within which any action thereon must be brought. The action was not brought within such limitation, but the court held that this fact was no bar, because the limitation was inconsistent with the nature of the interest insured, and, therefore, ineffectual to prevent a recovery, if diligence was employed to establish the loss in the way prescribed by law.
In Bumstead v. Dividend Mutual Ins. Co. (12 N. Y. 81) the policy in suit contained a condition that the insured, in case of loss or damage, should, as a condition precedent to a, recovery, within thirty days deliver to the insurer a particular account of the loss or damage, verified by his oath, and, if required, by his books and vouchers, together with it an inventory of the property destroyed or damaged, giving the amount of damage to each item, verified by his *362oath. The insured was unable to comply with this requirement, by reason of the fact that the papers and other data from which a statement of the nature required could have been made were consumed in the fire. And the court held that the action might be maintained, and that such conditions were construed as requiring only as full and accurate an inventory and statement as the party, without fraud or fault on his part, was able to furnish. This case is also an authority ' for the proposition that, where an insurance company receives proofs of loss which do not- comply with the requirements of the policy, without objecting to their form or tíme of service, and declines, to pay the loss without placing the refusal upon such non-compliance, its action amounts to a waiver of any objection which may have existed by reason of such non-compliance.
In O'Neill v. Mass. Benefit Assn. (63 Hun, 292) — which was an action brought to recover upon a policy of life insurance which contained a condition requiring the plaintiff. to furnish a certificate of the death of the insured by his attending physician, and no such certificate was furnished, for the reason that the attending physician declined to. make the certificate until his bill for services to the deceased was paid — it was held that.this was a sufficient reason for not requiring a full compliance with the condition of the policy as a prerequisite to maintaining the action.
But, without citing additional authorities in support of this particular aspect of the case; it is sufficient to say that, in the view which I take of this question, the fair and reasonable construction which ought to be given to the provisions of the policy in suit, which relate to the filing of proofs of loss, and the commencement of any action to recover such loss, is that the time limited for taking either of these steps did not begin to run until there was some person in existence who might furnish the proofs or bring the action. And this view, it 'seems to me,, is, in principle, supported by the case of Trippe v. Provident Fund Society (140 N. Y. 23).
As opposed to this view of the question, the case of Wilkinson v. First National Fire Ins. Co. (72 N. Y. 499) is cited, This was a case where it was claimed that the insured were prevented from bringing their action upon the policy within the time limited therein, in consequence of an injunction issued at the suit of a third person against one of the parties to the contract, and it is stated in the *363syllabus of the case that this condition of affairs was not sufficient to relieve a party from non-compliance with the condition. But it will be observed by a careful reading of Judge Andrews’ opinion that the decision of the case rests upon the fact that the injunction did not restrain the commencement of the action, but only enjoined the insured from receiving the insurance money from the company, and that it also appeared that, even if the bringing of the action had been enjoined, the court would, upon proper application, have modified the order so as to have enabled the insured to comply with the condition of his policy; and that he was consequently guilty of laches in omitting to make such application.
I do not see, therefore, that the principle established in this case is in conflict with the views hereinbefore expressed; nor is it impossible to distinguish the case at bar from that, of Wheeler v. Conn. Mut. Life Ins. Co. (82 N. Y. 543). The policy in the latter case contained a clause by which the insured forfeited his interest therein in the event of the non-payment of any premium when due; and it was held that the insanity of the insured was no excuse for such non-payment and did not effect a waiver of the forfeiture, because it was not necessarily an obstacle to the performance of the condition. And the case is an express authority for the proposition that where the condition in a contract of life insurance is incapable of performance, no forfeiture results.
The learned counsel for the defendant makes some point upon what he is pleased to term the laches of the plaintiff in bringing his action, or in obtaining leave to bring the same, and insists that, by reason of such laches, he ought to be deprived of the right to invoke the aid of the principle which the authorities, in my view of the case, seem to establish. But there are at least two perfect answers to this contention upon his part. In the first place, no such defense is set up in the answer, and the evidence of laches upon the part of the plaintiff is, at the most, exceedingly nebulous in its character; and, in the second place, if it were much stronger than it is, it would simply have presented a question of fact for the jury, and the learned counsel expressly stated upon the trial that there was -no question of fact in the case which he desired to have submitted to the jury.
The courts of this State have been inclined to construe the pro*364visions- contained in policies of insurance favorably to the insured. In Norton, v. R. & S. Ins. Co. (7 Cow. 649) Savage, Ch. J., says: “ The clause requiring proof of loss in marine policies has been construed with considerable liberality. The courts have looked to circumstances, and required no more information of the party than what appeared to be within his control.”
The same liberal construction was in that case extended to a fire policy. And the language just quoted has met with approval in our court of last resort. (Bumstead v. The Dividend Mutual Ins. Co., supra.)
If, however, it is contended that this tendency to liberal construction is obviated by the legislative enactment requiring all insurance companies.To-adopt-a standard and-uniform policy,-the answer -that policies thus formulated do contain provisions which aré somewhat harsh and severe in their requirements of the insured, and when such provisions involve a forfeiture, they ought still to receive similar Construction, even though they may cbnform to a fixed standard.” (Griffey N. Y. C. Ins. Co. 100 N. Y. 417; McNally v. P. Ins. Co., 137 id. 398; Davis v. American C. Ins. Co., 7 App. Div. 488.)
And especially is this true of conditions relating to matters after the loss which are designed to define the manner in which an accrued loss is to be established, adjusted and recovered (See opinion of O’Brien, J., in McNally case, supra, page 398.)
The conclusion of the matter, therefore, in my view of the case, Isi, that the performance of the condition contained in the policy was rendered practically impossible by reason of the death of the insured ; that its non performance was without any fault or laches upon the part of the plaintiff, and that, consequently, his failure to comply with such condition does not work a forfeiture of the policy, nor does it operate as a -bar to this action. And this view of the' case, constrains me to dissent from that entertained by a majority of my brethren.
Defendant’s exceptions sustained and the plaintiff’s complaint dismissed, with costs.