App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1903.

The appointment of a commissioner, who was not a freeholder at the time of his appointment, is not made valid by the fact that he subsequently, before the hearing, becomes a freeholder, and his appointment will be vacated upon motion.

APPEAL by John M. Eddy, a party to the above proceeding, from so much of an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of December, 1902, as denies the appellant's application to remove Frank Jones, a commissioner appointed in the above-entitled proceeding, and to appoint another person in his place and stead.

John L. Henning, for the appellant.

Edgar T. Brackett, for the respondents. LYON, J.:

The provisions of section 84 of the Highway Law (Laws of 1890, chap. 568) require that the three commissioners appointed to determine as to the uselessness of a highway shall be disinterested freeholders.

It must be regarded as established by the papers presented to the court upon this appeal that Frank Jones was not a freeholder at the time of his appointment as commissioner on October eighteenth, but that intermediate that date and the hearing of the application to vacate his appointment on November twenty-first, he became a freeholder. The statutory requirement is that persons appointed be freeholders. at the time of their appointment. Later becoming a freeholder does not validate the appointment of the commissioner. (People v. Purdy, 154 N. Y. 439.)

The appointment of a person not a freeholder will be vacated upon motion when that fact is made to appear. (Matter of Beehler, 3 N. Y. St. Repr. 486; appd., Matter of Baker, 173 N. Y. 249.)

Furthermore, we think that in view of the affidavits before the Special Term as to the possible interest of the appointee, and without any reflection upon him, the application should have been granted. It is essential that a commissioner be able, without liability of embarrassment to himself, to act with entire freedom in the performance of his duties as such commissioner.

We think the court erred in denying the application to vacate the

THIRD DEPARTMENT, MARCH TERM, 1903.

[Vol. 81. appoinment of Frank Jones, and to appoint another person in his stead as commissioner.

Order, so far as it denied application to vacate appointment of Frank Jones, reversed, with costs, and motion to vacate such appointment granted, with costs.

All concurred.

Order, so far as it denies application to vacate the appointment of Frank Jones as a commissioner, reversed, with ten dollars costs and disbursements, and motion to vacate said appointment granted, with ten dollars costs.

MARY C. LEGNARD, Appellant, v. THE STANDARD LIFE AND ACCIDENT INSURANCE COMPANY OF DETROIT, MICHIGAN, Respondent.

Insurance agent he possesses only the powers explicitly conferred his agency cannot be established by proof of his declarations—when a local agent and not authorized to waive conditions of the policy.

An agent of an insurance company 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.

The existence of an agency cannot be established by the declarations of the alleged agent.

Where a policy of accident insurance provides, "The stipulations and conditions of this contract for insurance cannot be waived or altered by any representative of the company, and any modification thereof shall be invalid unless indorsed thereon and signed by the president or secretary of the company," and recites that the company "has caused this contract to be signed by the president and secretary and countersigned by its duly authorized agent," and is also "Countersigned this 2d day of May, 1901. H. W. Leonard, Agent, M," such agent will, in the absence of any proof as to his powers, be deemed to be a local agent and he has no power to waive any of the stipulations or conditions of the policy.

APPEAL by the plaintiff, Mary C. Legnard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 21st day of October, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term.

The action is brought upon a policy of insurance issued by the defendant to Edward Legnard, the plaintiff's husband. By its terms

App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1903.

the defendant insured said Legnard for the term of one year from the 2d day of May, 1901, against death resulting from bodily injuries, caused solely by external, violent and accidental means, and agreed that, if death resulted solely from such injuries as the proximate cause thereof within ninety days, to pay the sum of $2,500 to Mary A. Legnard, his wife.

The policy contained the following provisions: "Immediate notice in writing of any accident and injury on account of which claim is to be made shall be given said company at Detroit, Michigan, with full particulars and full name and address of the insured; and, unless affirmative proof of death, and that the same was the proximate result of external, violent and accidental means, is so furnished within two months as to death * * * from the happening of such accident

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the company shall be released

from all liability for the payment of any claim based thereon." "In case of autopsy being held, the company shall have due notice and opportunity for its medical examiner to be present and participate therein. Any refusal on the part of the

beneficiary

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*

to comply with this provision shall invalidate and forfeit any and all claims under this policy."

"The stipulations and conditions of this contract for insurance cannot be waived or altered by any representative of the company, and

any modification thereof shall be invalid unless endorsed thereon and signed by the president or secretary of the company."

In the testimonium clause it is stated that the company "has caused this contract to be signed by the president and secretary and countersigned by its duly authorized agent." In addition to being signed by the president and secretary it is "Countersigned this 2d day of May, 1901. H. W. Leonard, Agent, M." Further facts are stated in the opinion.

T. F. Hamilton, for the appellant.

Edgar T. Brackett, for the respondent.

CHESTER, J.:

It is alleged in the complaint that the defendant waived the provisions of the policy requiring notice of injury and proofs of death

THIRD DEPARTMENT, MARCH TERM, 1903.

[Vol. 81. and 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 he 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 and 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 defendant 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, 1902, written by direction of the plaintiff, stating that an autopsy had

App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1903.

been 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.