Misc.] Superior Court of Buffalo, December, 1895. particulars. It is not denied but that notice of the fire was immediately given at the agency from which the policy iscued, and if we assume that this was insufficient, it appears in fact that this notice was brought home to the company, and that in fact their representative was at the scene of the fire shortly after it occurred. The proofs of loss bore date November 29, 1893, and were stamped as received by the company on December fifth. The fire occurred November tenth. In respect, therefore, to the notice of the fire and the time of filing proofs of loss there was a substantial compliance with the requirements of the policy. The proofs of loss were retained by the defendant without objection, so far as the record shows, until January 2, 1894, nearly a month from time of reception, when a letter was written objecting to the same, and requiring further proof in that regard. It has been settled that retaining proofs of loss without objection is a waiver of any defects contained therein. Keeney v. Home Ins. Co., 71 N. Y. 396. And where the company retained proofs of loss for a period of twenty-three days and then returned them, coupled with circumstances showing want of good faith on the part of the company, it was held that the jury were authorized to find a waiver of the conditions. Paltrovitch v. Phænix Ins. Co., 143 N. Y. 73. The rule would, therefore, seem to be that where proofs of loss are retained or held for a time and then returned, dependent somewhat upon the particular circumstances of the case, it may be made a basis for the jury to find a waiver of compliance with the conditions. The first objection which the company made required plaintiff to make a complete inventory stating quantity and cost of each article and amounts claimed. thereon. Also, cash value of each item and amount of loss thereon. All incumbrances thereon and any changes in the title, use, occupation, location, possession or exposure of the property since the issuing of said policy. The plaintiff replied to the first two objections, under date of January ninth, claiming that as the goods not specified in the proof of loss were Superior Court of Buffalo, December, 1895. [Vol. 15. burned, there was an impossibility of compliance in that respect, and that the parties would be of necessity relegated to the books to determine it. As to the third, that the proofs stated there was no incumbrance, and the last, that there had been no change. Reference to the proofs of loss show that the claim as stated was based upon the inventory of purchase, goods since purchased, labor on made-up garments, less the sales, profits thereon and what was realized upon the sale of stock after the fire. The claim being for goods absolutely destroyed by the fire, the proofs of loss could not practically contain an itemized statement of them, and plaintiff was right in insisting that impossibilities were not required, and that the clause in the policy related to goods saved from the fire, not those that were burned. As to those not burned, defendant's representative made an inventory in company with a representative of plaintiff. The first two objections were, therefore, without merit. The proofs stated that the property belonged to the assured and no other person or persons had any interest therein. This was a practical statement that there was no incumbrance upon the property. The last ground of objection is found stated in the proofs of loss in nearly the identical words of the objection. It, therefore, appears with some clearness that the objections to the proofs of loss authorized the jury to find. that defendant waived whatever of defects there were. It is further claimed that plaintiff violated the provisions of the policy in selling the goods. It appeared that the goods were sold at auction on November twenty-ninth, Tuesday; that notice of the auction was published in two daily papers on the Saturday prior thereto; that the defendant was notified by telegram of the sale, at what particular time does not appear, and that there were several people at the sale. The goods which survived the fire brought at such sale $250. Prior to this time the inventory by defendant's agent had been taken, and the kind, quality and value of these goods were then known. No demand for any other appraisement had then been made, or was ever thereafter made, and it does not appear from any witness for defendant that the goods were worth Misc.] Superior Court of Buffalo, December, 1895. * * more than the price at which they sold. Plaintiff claims they brought all they were worth. The clause in the policy provides that "It shall be optional, however, with this company, to take all, or any part, of the articles at such ascertained or appraised value, * within a reasonable time, on giving notice within thirty days after the receipt of the proof herein required of its intention so to do." No claim is made that the option here provided for was ever exercised or attempted to be exercised, or that any notice of such intention was ever given. The basis upon which this step could be taken existed because the value had been ascertained, the proofs of loss were served, and if defendant proposed to exercise its right it had the reserved thirty days in which to do it. The fact that plaintiff sold before the expiration of the time did not at all affect the right of the defendant to demand compliance with this condition. But before it could put defendant in default of a violated condition, it must have itself taken steps to show that it wished to avail itself of the option. Not having done that, plaintiff is not in fault for selling. He was required to do something, as by the express provisions of the policy he could not abandon the property to defendant. It is, therefore, sufficient to say that defendant did not create the condition which could be violated by plaintiff, consequently there was no violation of any condition. And, in addition, defendant is not shown to have been prejudiced by anything that was done in this regard. The principle of the decision in McNally v. Phænix Ins. Co., 137 N. Y. 389, applies to this case, and in view of it we do not think there has been such departure from the terms and conditions of the policy as will work a forfeiture. We have examined the other exceptions in the case, but are unable to see error therein. The judgment and order appealed from should, therefore, be affirmed, with costs. WHITE, J., concurs. Judgment and order affirmed, with costs. Superior Court of Buffalo, December, 1895. [Vol. 15. CHARLES A. DIFFIN, Respondent, v. WILLIAM REID, Appellant. (Superior Court of Buffalo - General Term, December, 1895.) 1. MASTER AND SERVANT-COMPENSATION - EVIDENCE. In an action to recover a balance claimed to be due upon an alleged increase of salary, where the defendant counterclaims a judgment recovered for moneys loaned several years before to enable plaintiff to move from where he previously lived, evidence of what it cost the plantiff to secure a release from a lease at such place to enable him to enter defendant's service is inadmissible. 2. SAME. Where the agreement for an increase of salary is conditioned on the business turning out well, evidence as to losses in the business, whether arising from bad debts or otherwise, is competent. APPEAL from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying defendant's motion for a new trial. D. McNaughton, for appellant. George Wing, for respondent. evi HATCH, J. Upon the trial of this action plaintiff gave dence tending to establish that he was employed by defendant as a salesman, and had been for some years prior to January, 1893. The salary paid at the beginning of the service. was $1,200 per year, and this sum had been increased from year to year until, in 1892, he received $1,800. Defendant's principal place of business was at Detroit, Michigan, and he had a branch store located at Buffalo. Plaintiff was employed as a traveling salesman, and was connected with the Buffalo branch. In February or March, 1893, he called upon defendant at Detroit and applied for a raise in salary, stating that he wanted $2,500 per year. In reply to this plaintiff testified that defendant "said he would give me twenty-one hundred dollars a year for the year, at the rate of $175 a month, and that he would give me a credit memorandum at the end of the year that would meet with my idea of price. I said that Misc.] Superior Court of Buffalo, December, 1895. was satisfactory. I did not have any conversation with him after that in regard to salary at all." Plaintiff continued in defendant's employ until February 10, 1894, when he was discharged. When plaintiff's employ began he was living at Meadville, Pennsylvania, and defendant loaned him sufficient. money at that time to remove with his family to Buffalo. At the time when the salary was adjusted this loan was represented by notes of plaintiff, which defendant held, then amounting to $350, and it was then agreed that $25 per month should be retained from salary to apply on this debt. The debt was never paid, and, in July, 1894, defendant recovered a judgment against plaintiff for $394.68, which judgment he plead as a counterclaim herein and demanded judgment for the amount, with interest. It was upon this testimony that plaintiff sought to recover a balance of unpaid salary at the rate of $2,500 a year, he having only been paid at the rate of $2,100. No credit was ever made him of $400 at the expiration of the year, or at any other time or of any other sum. Defendant testified respecting the salary adjustment that he told plaintiff "I will make the salary $175 per month, or $2,100 for the year, commencing January 1st, and that if the business was prosperous and turned out well I would give him a further credit at the end of the year." It appeared that no formal demand was ever made by plaintiff for payment of the claimed unpaid salary prior to the commencement of this action. Several letters were written by him prior and subsequent to the discharge. One under date of May 10, 1893, on account of increased living expenses, asks for the twenty-five dollars per month which was to be retained, and says, "If you insist on it, I will allow $25 per month to apply on the notes. from May 1st, and try to make ends meet until the end of the year, when you promised an increased amount." One under date of February 28, 1894, admits the indebtedness upon the notes, offers to give a new note, pay interest, and holds out an expectancy of being able to pay the whole, or at least half the principal the coming year. This letter also contains a statement of salary account, showing a balance in his favor of |