39 Misc. 808 | N.Y. App. Term. | 1903
The action is brought upon a policy of fire insurance. Waldman, the broker who procured the insurance for the plaintiff, testified that he originally applied to the defendant’s
The testimony of the defendant only contradicts that of the plaintiff in so far as it shows that the application for the insurance was prepared by defendant’s clerk in Waldman’s presence or upon his dictation. In any event, however, in view of a direction having been asked by both parties, every reasonable intendment upon the facts, in favor of the party, in whose behalf the judge directed the verdict, will be assumed.
It is undisputed that a policy covering the cloak establishment of the plaintiff and certain machinery and fixtures at 1583 First avenue, was issued; that a fire took place in plaintiff’s premises on First avenue; that plaintiff had no place of business on Third avenue, and there is no proof that any other person had such business there as was covered by both policies. The defense substantially relies upon a surrender of the First avenue policy and a cancellation thereof by the defendant. If this defense is made out there can be no recovery here.
The facts upon which the defendant relies to support its defense are, that Waldman was the agent of the plaintiff; that as such agent he surrendered the First avenue policy; that upon such surrender it was canceled by the defendant; that defendant never made a survey of the premises and hence did not know who occupied the Third avenue premises nor for what purposes they were used; that the only policy in force issued by the defendant in favor of the plaintiff was the one covering the Third avenue premises.
The statement of the facts shows that the defendant in the first instance made a mistake in writing a memorandum for a
To effectuate a legal surrender and cancellation, it is evident there must be an intent of both parties shown' on the one hand for a cancellation of the given policy and on the other, an acquiescence therein, followed by an actual cancellation. Or, such a state of facts must exist that a desire was expressed for a cancellation by one party through a mistake, if you please, and that the other, in ignorance of the mistake, acted thereupon and surrendered some rights. In this case, however, it cannot be said that either party intended that a cancellation be effected of the First avenue policy, and it is difficult to understand how any of the rights of the defendant were affected by the erroneous cancellation.
Again, unless the broker Waldman had authority to surrender, his act of surrender would not be binding upon the plaintiff. All that the testimony shows is that he had full authority to procure insurance in whatsoever company he chose. This authority he exercised. Having exercised it, his authority ceased. He had no authority to surrender the policy and leave the plaintiff -uninsured, although he may have had the power to substitute other insurance, if he saw fit to do so.
The policy of First avenue having been thus legally issued to the plaintiff, no one could surrender it to the defendant other than the plaintiff himself or his duly authorized agent. In either aspect of the case, therefore, the policy on First avenue was never legally cancelled and was in full force and effect at the time of the fire, even though it was then in defendant’s possession.
This conclusion is rendered more certain by the fact .that, although it may be here assumed that no survey was ever made of the premises by any one representing the defendant, the law will presume that the defendant knew what it was insuring. In the
The judgment must be affirmed, with costs.
Freedman, P. J., and Clarke, J., concur.
Judgment affirmed, with costs.