It is alleged in the complaint that the defendant waived the provisions of the policy requiring notice, of .injury and proofs of death *322and also the provision' requiring due notice of autopsy to be given. The claim of the plaintiff is that these provisions were waived by the defendant’s agent, Leonard, who had countersigned the policy.
. Legnard died suddenly February 17, 1902, while on board a railroad train running from Albany to Troy. On the evening of that or of the next day Leonard told the plaintiff that her husband died from heart disease; that that was the decision of the coroner ; consequently that freed the company. He said the company had sent word to him to have an autopsy if she wished it. When asked by her if there was anything the company would have her do, he said no, the company would not pay anything. No autopsy was had at the time. About three weeks afterward, while the body was in the vault at the cemetery, the plaintiff again saw Leonard' and told him that she doubted if Legnard had died of heart disease and asked if she could have an .autopsy, and tie said it was' too late, the company would not stand it.
The plaintiff had an autopsy performed on the body by Dr. McCarthy and other physicians on April 9 or May 9,' 1902. It is not made clear by the evidence upon which date. Two broken ribs were found and no trouble was found with the heart, liver or kidneys. Dr. McCarthy testified that in his opinion “the cause of death could have been from the fracture of the ribs.” He also testified that he notified Leonard of the autopsy and said to him that he “ thought it would be advisable to have Dr. Murray there, as he was the physician for the company, He said they offered Mrs. Legnard to have an autopsy on the body aud she- did not do it in time and the company would have no more to do with it.” 'No proof was given, however, that Dr. Murray represented the defend-, ant or was its physician. I think it cannot fairly be said from this that there was a refusal by the plaintiff to comply with the provision of the policy with respect to notice of autopsy, because of which the policy became invalidated, but the difficulty with plaintiff’s case is her failure to comply with the provisions of .the policy respecting proofs of death or to show that such provisions had been waived. The only notice to the defendant other than the conversations with Leonard was contained in a letter from Dr. McCarthy addressed to the defendant at Detroit, under date of May 9, 190.2, written by direction of the plaintiff, stating that an autopsy had *323been held on the body of Legnard; that they found everything in perfect order except two broken ribs, a pure accident, and stating that Mrs. Legnard claimed the damages under the policy. A son of the plaintiff testified that on the night before his death Legnard had fallen on his right side across an iron foot scraper four or five inches long on his piazza. If this accident was the cause of Legnard’s death on the following morning, as is claimed, it will be observed that the letter of Dr. McCarthy was not a compliance with the conditions of the policy as to notice and proofs of death, as it was not sent within two months after the accident, nor did it make any attempt to fulfill the requirements of the policy as to such proofs. If these conditions were not waived the defendant was by the terms of the policy released from all claims under it.
In discussing the case thus far the substance of all of the evidence on the trial, showing compliance by the plaintiff with the provisions of the policy respecting notice and proofs of death and upon which a waiver of the conditions of the policy in respect to these matters can be predicated, has been mentioned and it need not be repeated.
If Leonard was an agent of the defendant having power to waive forfeitures or conditions in the policy there was undoubtedly sufficient evidence to justify the submission of the question of waiver to the jury. An agent' of an insurance company, however, possesses only such powers as have been explicitly conferred upon him by the company, or such as third persons have a right to assume that he possesses. (Quinlan v. P. W. Ins. Co., 133 N. Y. 356.) In this case the plaintiff had no right to assume that Leonard could waive the conditions of the policy, because it in express terms contained a prohibition of his so doing. Nor was there any proof whatever as to his powers as agent except the fact that he countersigned the policy as such and the statement in the policy that it was countersigned by the defendant’s “ duly authorized agent.” The most that can be claimed for this is that he was a local agent and authorized to countersign policies issued by the defendant, and such an agent has no power in violation of the terms of the policy to waive any of its conditions. (Bush v. Westchester Fire Ins. Co., 63 N. Y. 531; Marvin v. Universal Life Ins. Co., 85 id. 278; Van Allen v. Farmers' Joint Stock Ins. Co., 64 id. 469; Messelback v. *324Norman, 122 id. 578; Hides v. British Am. Assur. Co., 162 id. 284.)
It was also shown that about a week after mailing the letter written to the defendant by Dr. McCarthy a stranger called upon the plaintiff and had a talk with her about her loss. The court sustained an objection to plaintiff's stating that he claimed to be. an adjuster for the defendant and to her giving the conversation between them, on the ground that it was hearsay and that he had not been shown-to be authorized to speak for the company. It was not shown or offered to be shown that he had Dr. McCarthy’s letter in liis possession. Nor was there any proof or any offer to prove that he did in fact represent the company other than such as was included - in the question put to plaintiff asking if a man claiming to be an adjuster of the company called upon her. It does not require the citation of authorities that an agency cannot be established by the declarations of the agent alone, yet that was all that was involved in the excluded testimony, and the objection was, therefore, properly sustained.
1 think that the plaintiff failed to establish any liability of the defendant under the policy or to furnish sufficient proof to justify the submission to the jury of the question whether or not there was a waiver of the conditions of the policy and that the motion to dismiss the complaint was, therefore, properly granted.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.