The plaintiff sues upon a contract of suretyship made by the defendant.. The contract provided that ‘1 said Surety shall be notified in writing of any act, omission or default on the part of the said principal, or his, their or its agents-, or employees which may involve a claim or loss for which the said Surety is or may be responsible hereunder,, within forty-eight hours, after the occurrence of such act, omission or default shall have come to the knowledge of the owner or his, its or their agents, officers or representatives; said notification must be given by a United States Post Office registered letter mailed to the said Surety at its principal office in Chicago, Illinois; and in any event, not later than thirty days after the occurrence of any such default, the- owner shall file with the Surety at its principal office- in the City of Chicago, Illinois, written proofs of the principal facts showing such default and the date thereof.” The justice below has held that the plaintiff has failed to comply with this provision of the contract in that he did not file with the surety written proofs of the principal facts showing such default and the date thereof. It appears that the default occurred on August second, and that the plaintiff, within forty-eight hours, sent to the defendant an instrument in writing as follows:
“ Illinois Surety Co.,
“ Chicago, HI., and 5 Nassau Street,
“ Borough of Manhattan, City of New York: “ Gentlemen.— Please to take notice that on June 13th, 1912, you executed a bond for the Bethel Construction Co., as principal, and the undersigned, for Nine Hundred and Fifty ($950) Dollars, which was given to secure the undersigned, Nathan Fass, who furnished all labor and materials for the páinting- and paper hanging on the two new buildings- in the course of the *272erection on the westerly side of Fulton Avenue, distant one hundred (100) feet south of 171st Street, in the Borough of Bronx, City of New York.
“ That the undersigned has completed his contract, and furnished all the material, work, labor and services pursuant to and in accordance with his contract, and is entitled to receive the sum of Nine Hundred and Fifty ($950) Dollars.
“That the owner, viz: The Bethel Construction Co., has defaulted in the payment of the sum of Nine Hundred and Fifty ($950) Dollars, which was due to me upon the completion of said work mentioned in said contract, and which work was completed on August 2nd, 1912.
“ Kindly mail check to me for the sum of Nine Hundred and fifty ($950) Dollars, otherwise I shall be obliged to engage counsel to enforce the collection thereof.
“ Nathan Fass,
“ 2257 Seventh Avenue,
‘ ‘ Borough of Manhattan,
“ City of New York.
“ By David Friedmann,
“Attorney for Nathan Fass,
“ Office & P. O. Address,
“ 309 Broadway, .
“ Borough of Manhattan,
“ New York City.”
It is not disputed that this instrument constitutes a sufficient notice but the plaintiff failed to file any further proofs and he has not complied with the conditions of the contract unless this letter is to be regarded not only as notice but also as proof of default.
It is to be noted that this letter begins with the words “ Please to take notice ” and that every state*273ment of fact contained therein is connected with these words hy the word “ that.” In other words the letter contains no direct statement of fact except in so far as a statement of fact may be implied from a notice that certain events have occurred. It is not verified and it is not signed personally by the plaintiff but is signed by his attorney. It seems to me impossible to hold that under any circumstances this instrument constitutes proofs within the meaning of the contract. The contract provides specifically for notice of default and proofs of the principal facts and it is clear that the parties contemplated that the proofs must be something more than a mere notice. Even though it may well be that the filing of proofs of the principal facts would, of itself, constitute also notice of the default, the converse is not true and a filing of notice of default would not of itself be a compliance with the condition that proofs of the principal facts must also be filed. It is difficult if not impossible for the court to lay down a general rule as to what writings would constitute “ written proofs.” In the case of O’Reilly v. Guardian Mutual Life Insurance Co., 60 N. Y. 169, the court stated: “ What the character of the ‘ proof ’ should be when not prescribed -by the terms of the policy must depend very much upon the fact to be proved,, and the evidences by which it is ordinarily established, or of which it is susceptible. But that proof, as that term is used, means something more than the unverified declaration of the party in interest, whether formal or informal, may be laid down as a self-evident proposition.” In this case the instrument is unverified and if' an unverified statement is never to be regarded as proof then, of course, this instrument does not constitute “ proof.” I think, however, that such a rule would be too strict for universal application and that the court in that case intended to state as a self-evi*274dent proposition,” only that an unverified declaration of the party is not proof “ as that term is used ” in the contract there under consideration. I think that the true rule to he applied in each case in accordance with the circumstances of the case is contained on page 173 of that opinion. ‘ ‘ It need not be that full, clear and explicit proof which would be required upon the trial of an issue upon the question, but it must be such reasonable evidence as the party can command at the time to give assurance that the event has happened upon which the liability of the insurers depends. Walsh v. Washington Marine Ins. Co., 32 N. Y. 427. The purpose of the condition is that the insurer may be able intelligently to form some estimate of his rights and liabilities before he is obliged to pay and some proof must be exhibited. It seems to me quite clear that though we give the words “ written proofs ” the most liberal interpretation in order to avoid a forfeiture, yet a mere letter signed by an attorney who is not presumed to have any knowledge of the facts and containing no statement of fact except statements joined by the word “ that ” to the words “ please take notice ” can constitute no basis for any estimate by the surety of its rights and liabilities and can constitute no “ written proofs.”
It is urged now that even if the instrument does not constitute any written “ proofs ” yet since the defendant has retained the instrument without demand for further proof until after the time for filing proofs had expired, the defendant is estopped from now claiming that the letter is insufficient. I agree that the doctrine of estoppel is peculiarly applicable to this class of cases. Since no general rule can be laid down as to what writings are sufficient to constitute written proofs “ as that term is used” the courts should hold the surety company estopped from, raising a claim that *275sufficient proof has not been furnished, if by act or omission it has led the insured to refrain from furnishing such further proof as would be a compliance with the contract. In this case the claim of estoppel is based upon the failure to object to the letter as sufficient proof or to demand further proof. Obviously such a claim cannot be sustained unless the insurance company had notice that this letter was intended as proofs. If the letter was sufficient as a notice and did not purport to be more than a mere notice, then as the Court of Appeals stated in the case of O’Reilly v. Guardian Mutual Life Insurance Company, supra: “ it would have been impertinent to have notified the plaintiff that a paper, not purporting to be proof was not sufficient proof.” The letter is insufficient as written proofs, it was sufficient as a notice and there is nothing in the letter to show that it purported to be more than a mere notice unless its conclusion “ Kindly mail check to me for the sum of Nine Hundred and fifty dollars, otherwise I shall be obliged to engage counsel to enforce the collection thereof ’ ’ should be regarded as a notice of plaintiff’s belief that the instrument was a compliance with the contract.
I do not think these words can be given any such effect. The contract required notice of default to be given within forty-eight hours and the insured had thirty days to file written proofs. The request or demand for payment was not enforcible until the written proofs were filed and both the plaintiff and the defendant are presumed to have known this. Such a request or demand for payment before all the technical conditions are complied with is not, however, so unusual as to give rise to any fair inference that the plaintiff believed that he had complied with all the conditions or that he did not intend to proceed to comply with the other conditions- precedent to a right *276to make such a demand. It seems to me clear that in view of the form of the notice, the defendant was entirely justified in regarding the instrument only as one purporting to he a notice. Under such circumstances it was not bound to reply to a demand or request for payment which was clearly not justified at that time. The very form of the letter, and the fact that as a notice it was served within the time specified in the contract, justified the defendant in believing that the plaintiff would follow up the notice with the required proofs which would enable it to form some estimate of its liability before payment. The failure to reply to this notice constitutes no acquiescence in any claim of plaintiff that it is a compliance with the contract not only because the defendant was not in fairness called upon to reply to it but also because it does not, on its face, show any such claim in which defendant could acquiesce.
It follows that judgment should be affirmed, with costs.
Judgment reversed, with costs.