29 A.D. 546 | N.Y. App. Div. | 1898
Judgment affirmed, with costs, on opinion of Beekman, J., in the court below.
The following is the opinion of Beekmaít, J.:
Upon the previous trial of this action the complaint was dismissed at the close of plaintiffs’ case, on the ground that there had been a complete accord and satisfaction between the parties by the receipt by the plaintiffs of the amount paid them by the defendant on the settlement of the loss under the policy. The judgment which followed this decision was affirmed by the General Term of this court, though on different grounds. (74 Hun, 448.) On appeal to the Court of Appeals (148 N. Y. 624) the judgment and order of affirmance were reversed on the ground, which is gathered from the opinion of the court, that “ the trial judge treated the settlement of the loss as if it were a full accord and satisfaction, and would not allow the plaintiffs to prove the facts constituting their cause of action.” As that court also held that no accord and 'satisfaction had been established, anew trial was ordered in order that the plaintiffs might have an opportunity of presenting their proofs in support of the charge, which is the gravaman of their suit, that the policy had been materially changed by the defendant company, wfithout their knowledge or assent, after the property insured had been destroyed by fire, and the liability of the defendant on the policy had become fixed — a fact which they did not discover until after the settlement of the loss. The change so claimed to. have been made was the substitution of a hundred per cent co-insurance clause for the eighty per cent co-insurance clause which was appended to the policy when it was originally issued; and as under the latter clause the plaintiffs would have been entitled to receive $823.72 more than they did, this action is brought to restore the policy to its original terms, to set aside the settlement and for the recovery of the above amount. The plaintiffs were engaged in the wool business at Nos. 120 and 122 Wooster street, and in July, 1892, obtained from various companies a line of insurance upon their goods which were stored in the premises above
It appears that the New York Board of Eire Underwriters is in the habit of supplying information to insurers with respect to premium rates, under' what arrangement it is unnecessary to consider. On August 22, 1892, a printed slip, described by the number 1483, was furnished by it to the defendant’s agents, containing among others, the following item: “120-122 Wooster street. Communications with 116-118, rear; bricked up; out 35; alter to 65.” On August 26, 1892, one Benjamin W. Skinner, a clerk of Brown & Skinner, plaintiffs’ brokers, called at the office of Ackerman, Deyo & Hilliard, defendant’s agents, and in an interview with Mr. Deyo, a member of the firm, asked for the desired reduction in the rate, which was assented to, and the amount was then and there agreed upon. Skinner wrote an indorsement on the back of the policy in Mr. Deyo’s presence which embodied the changes assented to, and handed to him a paper described as a “ binding slip,” which had been previously prepared in Brown & Skinner’s office. This slip, which was dated the day previous, contained a declaration that the undersigned insurance companies did thereby insure Belt, Butler & Co. for the amount set opposite their respective names, subject to the conditions of standard fire insurance policy of the State of New York on stock of wool contained in 120 and 122 W ooster street, New York city, “ as per policies left with companies for a reduction in rate, binding this 26th day of August at noon.” Then followed in par
I find then, that on the 26th day of August, 1892, there was a valid agreement between the plaintiffs, through their brokers, and the defendant company, through their agents, reducing the rate of premium to sixty-three cents, and as an element of the act and as a part of the agreement, changing the co-insurance clause as above stated. On the morning of August twenty-seventh, the day following, the property insured was substantially destroyed by fire. This took place before the actual entry of the change of rate upon the face of the policy, which entry reads as follows: “Aug. 22 92. Rate reduced to 63 c. for improvements under slip No. 1483, return premium $18.18 therefor.” . Slip No. 1483 thus referred to was the circular of the New York Board of Fire Underwriters advising the change of rate, and
, It may well be claimed that, under the evidence with respect to the relations between the plaintiffs and their brokers, the latter were invested with all the indicia of authority to consent to the change which was made, and that the defendant’s agents were, therefore, justified in dealing with them on the assumption of the existence of such authority. (Standard Oil Co. v. The Triumph Ins. Co., 3 Hun, 591;
There seems to be nothing left except the contention that the change -was not actually made either in fact or in law until after the loss had occurred. But finding as I do that the signing and delivery of the binding slip and the indorsement on the back of the policy made by Skinner, took place simultaneously on the twenty-sixth day of August, the day before the fire, their cause of action is utterly without support. The binding slip and the agreement with respect to the rate of premium and the associated one hundred per cent co-insurance clause, which entered into the fixing of the rate, constituted a present contract of insurance on the new terms. (Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454.) At page 457 of the report of that case, Andrews, Ch. J., says : “ The binding slip signed by the defendant was not a mere agreement to insure, but was a present insurance to the amount speci