139 N.Y.S. 375 | N.Y. App. Div. | 1913
The plaintiffs, as copartners, bring this action to recover an alleged loss under a policy of fire insurance issued to them by the defendant, and the defendant urges that it is not liable under such policy, on the ground that it never became operative, the plaintiffs having refused to accept the same. This was the issue tried and submitted to the jury, and while other matters are urged upon this appeal, we áre of opinion that the case must be determined here upon the theory on which it was presented before the trial court. It was stipulated on the part of the defendant that Messrs. Lustig & Marx, insurance brokers, on behalf of the plaintiffs, applied on or about the 14th day of October, 1909, to the National Fire Insurance Company of Hartford, Conn., defendant herein, for a policy of fire insurance insuring S. J. Singer & Sons, plaintiffs herein, and covering certain property in premises No. 113 Market street, Newark, N. J., and that in response to such application the National Fire Insurance Company of Hartford, Conn., defendant herein, executed the policy in suit, and that paid policy was countersigned by Messrs. Lowy & Berger, duly authorized agents of the defendant company at Newark, N. J., and delivered to Messrs. Lustig & Marx, and mailed by Lustig & Marx to the plaintiffs on or about November 16, 1909; that a fire occurred in the premises of the plaintiffs at No. 113 Market street, Newark, N. J., on the 2d day of December, 1909, by which certain of said property mentioned in the complaint was damaged and destroyed to the extent of $4,652.20; and that the. said fire did not happen from any of the causes excepted in the policy, and that the policy so made and delivered to Lustig & Marx had never been returned to the defendant.
There does not appear to be any question that Lustig .& Marx, insurance brokers, were the agents of the plaintiffs
What, then, is the. foundation of the claim on the part of the defendant that this policy, concededly made, executed and delivered to the agents of the plaintiffs, was not in force at the time of the fire? The contention is that the plaintiffs refused to accept the policy in suit, and this contention is based upon two letters written by an employee of the plaintiffs and addressed to Messrs. Lustig & Marx, who, it will be remembered, were not the agents or representatives of the defendant, but were the brokers engaged by the plaintiffs to procure the insurance. The first letter (Defendant’s Exhibit 1) bears date of November 17, 1909, is addressed to Messrs. Lustig & Marx, and
To this letter the firm of Lustig & Marx replied, acknowledging the receipt of the plaintiffs’ letter of the seventeenth, and saying: “We beg to say that the policies covering your stock in the Newark store, to the amount of $3, 500.00, were issued at the request of your Mr. Myer Singer, before the store was opened. Kindly advise us what to do in this matter.” To the above the plaintiffs, through an employee,' wrote, saying: “Answering your letter of Nov. 18th, beg to state that our Mr. Myer Singer has no. knowledge of having placed insurance with you to cover our branch store. There must be some mistake in the matter. Our insurance was placed, as we stated in a previous letter, before the store was opened. Otherwise we should have been glad to have given you the business.” The defendant knew nothing of this correspondence and took no action looking toward the cancellation of the policy in question before the fire on the 2d day of December, 1909; the communications were entirely between the plaintiffs " and their broker, and, except for the fact that the defendant in some unexplained manner got possession of these letters, there would be no possible foundation for the defense now urged. With, these letters in evidence, the plaintiffs called witnesses who testified to communications passing between the plaintiffs and their brokers in reference to this policy, from which it was lnade to appear that Myer Singer was the active manager of various stores owned by the plaintiffs, and that he had arranged for the policy in question some time in September, before the opening of the Newark store, but that the policy was not delivered until some tune in November, and that he assumed in dealing with the matter, as shown in the correspondence, that the policy then offered was additional insurance, and it wras this additional insurance which he supposed he was rejecting; that he subsequently communicated through one of the employees of the firm with the brokers, and it was then understood and agreed that if the policy was the one which had been
The judgment and order appealed from should be affirmed, with costs.
Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred.
Judgment and order affirmed, with costs.