This is an appeal by plaintiff from a judgment entered after a trial before the court without a jury.
The action is on a surety company’s bond to secure payment to plaintiff of an amount agreed to be paid for labor and materials to be furnished.
The bond required that the surety company should be notified in writing of any default on the part of the • principal within forty-eight hours after the occurrence of such default, and that not later, than thirty days after the occurrence of any such, default the insured or obligee should file with the surety company “ written proofs. ” ' of the principal ■ facts showing such default and the date thereof. The defendant contends and the court below found that this condition had not been, complied with and the correctness of that ruling is involved in this appeal.
It seems very clear, both on principle and authority, that two things are required by the above provisions, viz., notice of default and “ written proofs ” of the principal facts as to default, but that this does not *269necessarily mean that separate papers or documents must be furnished and that if sufficient for the purpose both the “ notice ” and “ written proofs ” may be contained in one instrument or paper.
In this case a letter was addressed to the defendant, signed in plaintiff’s name by his attorney, advising it of the fact of the alleged default and concluding with the request that defendant make immediate payment of the amount not paid and the statement that otherwise he (plaintiff) would be obliged to engage counsel to enforce collection thereof. Strictly speaking the letter is in form a notice only but does, in effect, contain a statement of fact. Even so, however, it may be conceded that standing alone and without the concluding clause it falls short of a compliance with the conditions of the bond. The concluding sentence, however, was a plain indication that plaintiff considered he had done all that was required of him to entitle him to payment and therefore that the letter was intended as both the notice and the proof called for by the bond, otherwise the demand for payment was meaningless. The defendant on the receipt of this letter including such demand must have understood that the plaintiff considered it a compliance with the provisions of the bond and under such circumstances was required in the exercise of good faith, if it deemed the letter insufficient, to so notify plaintiff; not having done so plaintiff was entitled to assume it was sufficient and rely thereon and the time for filing further proofs having expired, ■ defendant is estopped from now claiming that the letter is insufficient. O’Reilly v. Guardian Mutual Life Ins. Co., 60 N. Y. 169-174; Glazer v. Home Ins. Co., 190 id. 6. It is not á -question of-waiver-of performance which must be pleaded as where there-is a total failure to give notice or alleged proofs and waiver is relied on, *270but defendant is estopped from asserting that the letter is not performance. The object of the condition in the bond is that the surety shall be given an opportunity to investigate and satisfy itself before being called upon to pay, and it was urged on the argument that defendant, after the receipt of the letter in question, expected and was entitled to expect that it would be furnished with further proofs and relying thereon made no investigation of the facts. ■It is manifest, however, that by the letter purporting to contain information and calling upon defendant to pay, it was apprised of plaintiff’s claim that no further proof was required. It could then have proceeded on the facts presented or, if it deemed these insufficient under the provisions of the bond, have notified plaintiff in order that he might give more. It could not lull plaintiff into inaction until the time had elapsed and then claim the proofs insufficient.
Judgment reversed, with costs, and judgment directed for plaintiff for $950, with interest and costs in the court below.