56 N.Y.S. 37 | N.Y. App. Div. | 1899
I. Tanenbaum, Son & Co., insurance brokers, on behalf of the jilaintiff and many others, on the 4th of January, 1893, applied to one Ward Philips, as agent of the defendant, for tire insurance. Out of the applications presented Philips accepted over forty, including the plaintiff’s, and issued a “ binder ” for each signed by him as such agent. On the ninth of the same month Philips, upon sta
At the close of the trial the question was submitted to the jury to-determine -whether Philips, on the day the binder was issued, had authority from the defendant to issue the same, coupled with instructions that if he did not, then the verdict must be for the defendant.. The plaintiff had a verdict, and from the judgment entered thereon, this appeal is taken. The appeal being solely from the judgment,, only exceptions taken upon the trial are brought up for review. (Wright v. Haskin Wood Vulcanizing Co., 76 Hun, 340.) The-principal exceptions relied upon were those taken to the refusal to-dismiss the complaint at the close of plaintiff’s case, and to direct a. verdict at the close of the whole case. The appellant’s counsel urges-that the court erred in not granting one or the other of these motions, for the reason that sufficient evidence was not introduced to justify a finding that Philips, on the fourth of January, was authorized to-issue the binder in question. A reference to some of the evidence-bearing upon the subject will show that the learned counsel misapprehends its force, and that there was sufficient evidence to go to-
We are also of the opinion that there was sufficient evidence to justify the jury in finding that White was authorized to act as adjuster of the defendant, and that he had authority to make the agreement as to the appraisal which he did on its behalf. The general agent of the defendant knew that White was engaged by Philips and was acting as its adjuster, and that, in case of a disagreement as to the amount of loss sustained by the plaintiff, an appraisal would be had. He acquiesced in what White was doing, and did not repudiate his acts until after the defendant’s projDortionate share of the loss had been fixed and determined. After the defendant had thus permitted White to act with others interested in fixing the loss, good faith, honesty and fair dealing require that it should not thereafter be heard to say that White had no authority to do what he did.
It follows that the judgment appealed from must be affirmed,, with costs to the respondent.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.