207 A.D. 60 | N.Y. App. Div. | 1923
The plaintiff on his own statement should not be permitted to recover in this case. He was the district manager of the Equitable Life Assurance Society of the United States in Albany and Troy. Nobody could obtain a policy of insurance in that company in those localities except through him. In Troy one Mulhall was his sub-agent and one O’Neil was a solicitor attached to the sub-agency. The form of the transaction which is the subject of this litigation is the application by the defendant for two $5,000 policies of insurance. The evidence discloses no business reason for taking them out. A quarter of the annual premium which was paid to and accepted by O’Neil at the delivery of the policies was $150. The inference is that the annual total premium was $600. As matter of fact it was $588.80. The commission allowed by the company on the part payment of the premium was $235.52, leaving the amount accruing to the company from McNamee for the first year’s premiums $353.28.
This amount, and not $600, was paid by McNamee, the plaintiff, to his company. The evidence does not disclose that he paid such premium in pursuance of any agreement made by his solicitor O’Neil with Zimmett, the defendant; nor that the plaintiff personally made an agreement with the defendant. The only agreement the defendant had was with the insurance company. This appears also clearly from the plaintiff’s letter in which he says: “ This business was paid for in cash by myself in exchange for your note. I made inquiry and was advised that you were a man of standing and character, and desiring to help Mr. O’Neil, I paid the company for the policy and gave him his commission.” There is no evidence in the case that defendant gave any note for premiums. If he did it must have been to the company. If the note was made payable to O’Neil it would furnish undisputable evidence of the agreement, and liability of the defendant. There is no note. There was a payment volunteered by McNamee on the strength of the character of the defendant and the plaintiff’s desire to help O’Neil. Having received $150 there was at risk the sum of $200, the difference between $350 and $150. There is no evidence of any agreement
I advise the reversal of the judgment and the dismissal of the complaint, with costs.
Cochrane, P. J., Van Kirk, Hinman and McCann, JJ., concur.
Judgment and order reversed upon the law and complaint dismissed, with costs.