The plaintiff did obtain other insurance upon this property ■after the date of the policy issued to him by defendant. Such subsequent insurance made this policy void if the defendant’s consent thereto was not in•dorsed upon this policy, unless the defendant waived the indorsement, or so acted as to be equitably bound to make the indorsement, or be es-topped from taking advantage of the fact that it was not made. The plaintiff, after obtaining the subsequent insurance, told the defendant’s agent that he had obtained it. The agent, then being upon the street, replied to the jplaintiff, “ All right, I will attend to it. ” He failed to attend to it before the fire occurred, and now the defendant claims that that declaration of its agent, under the terms of the policy, has no effect. I think it was equivalent to a promise to indorse the proper consent upon the policy, a promise upon which the plaintiff had the right to rely, and did rely upon, and which the defendant cannot now repudiate to its ow'n gain, and the plaintiff’s loss, and which the defendant is estopped to refuse to perform, and could be compelled specifically to perform if necessary; but, since no such circuity is necessary, the law will regard as done what the defendant ought to have done, and will ■declare the rights of the plaintiff accordingly, and hence hold the present policy valid. Walsh v. Insurance Co., 73 N. Y. 5, is cited in opposition. But .in that case the agent performed all he promised to perform; the plaintiff’s misfortune consisted in relying upon the supposed legal effect of the full performance of the promise, and he was mistaken in that respect. It is not ■quite correct to call the transaction between the plaintiff and defendant’s •agent a waiver, since that could, under the terms of the policy in respect to further insurance, only be made in writing; but the agent had the power to make the necessary indorsement in writing, and consequently he had the power to make the preliminary oral executory agreement that he would make it, —an agreement which must be enforced, or regarded as enforced, in order to prevent a failure ofjustice. But as it is the duty of the court to declare the legal •effect of the transaction upon the rights of the parties, and as it practically • amounts to the same result whether called one thing or another, no error to the prejudice of the defendant was committed by the court in speaking of it as a waiver. Evidence was given tending to show a waiver of proofs of loss within the time fixed by the policy. The policy being valid, and a loss having occurred, subsequent proceedings are mere procedure to ascertain the amount due plaintiff upon the policy, and the consent of the parties may regulate it, notwithstanding specific regulations in the policy. The plaintiff acted as defendant *575consented he might, and defendant cannot now withdraw that consent to plaintiff’s injury. The judgment should be affirmed, with costs.
Learned, P. J., concurs.