133 N.Y.S. 165 | N.Y. App. Div. | 1911
The plaintiffs appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial. The action is upon a policy of fire insurance. There is no substantial dispute as to the facts.
The plaintiffs were the insurance brokers for the National Wire-Bound Box Company, having entire charge of and full authority concerning the insurance business of that company. Among other duties, in case of" cancellation of policies, they replaced the policies or arranged for their replacement without specific instructions from the box company as to the companies with whom the insurance was to be placed. They now sue as assignees of the box company. In April, 1909, having occasion to place insurance to the amount of $5,475 for the box company, plaintiffs wrote to the firm of Goodrich, Dobie & Dell, insurance brokers of Norfolk, Va. (where the property to be insured was located), asking them to place the insurance. Mr. Dobie,
Besides the formal denials designed to put plaintiffs to their proofs the answer contains three separate defenses, to wit: (1) That there was a breach of the covenant as to the amount of insurance upon the property hi that there was already
Having come to this conclusion, which seems irresistible, that Dobie had ample authority ’to consent to the cancellation of the Phoenix policy and the substitution therefor of defendant’s policy, there is no difficulty in arriving at the further conclusion that the plaintiffs are entitled to recover. It is perfectly apparent that neither plaintiffs nor Dobie ever intended to carry more than $5,475 upon the property in the aggregate, or ever considered or claimed that they were insured beyond that amount. It is equally clear that both Dobie and defendant’s Norfolk agents knew when the policy in suit was issued that it was intended to take the place of a policy for a like amount that was to be canceled. Dobie’s act in taking out a policy from defendant was an acquiescence in the request of the Phoenix Company that its policy should be canceled, which became effective the moment that defendant’s policy was issued. From that moment the Phoenix policy ceased to be effective, and defendant’s policy, which had been issued without condition, became effective. It consequently,was effective when the fire occurred. Upon the evidence as it stood at the close of the case the court would have been justified in directing a judgment for the plaintiffs, since their- right to recover depended upon undisputed facts, and the legal inferences to be drawn therefrom. Specific questions were submitted to the jury all of which were answered in defendant’s favor. These questions involved matters of law as well as of fact, and in so far ■ as they involved questions of fact the answers were contrary to the evidence.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.