Tbe court erred in dismissing tbe plaintiff’s complaint. Tbe action was for a loss by fire upon a policy of insurance. Tbe policy contained a condition that in case of a disagreement as to damages each party should select an arbitrator and' the two mould establish tbe loss, and upon a failure to agree that they should appoint a third, and that two out of the three should settle tbe amount. Each party did appoint one. There was proof tending to show that the defendant did not appoint these appraisers in good faith, and that the appraiser was not intended to appraise, but to refuse to appraise so as to force a settlement. That- he and the company refused to appoint another man to make up the board until after the property had been removed and cleared up, so that an appraisal could not well be made, if at all. This would not be answered if subsequently the company tendered an offer, again to refer to the arbitrators to be mutually appointed. If the first appointment was not in good faith, and was designed to accomplish an ulterior purpose and not an appraisement according to the spirit of the contract, the plaintiff was relieved from the condition and could sue in the ordinary way and have his damages assessed by a j'ury. It' was for the j’ury to say from the evidence whether the condition was broken.
*100The judgment should be reversed and a new trial granted, costs to abide event.
Pratt and Dykman, JJ., concurred.Judgment reversed and new trial granted, costs to abide event.