| N.Y. App. Div. | Jun 20, 1955
In an action to recover upon a policy of fire insurance, defendant appeals from a judgment in favor of plaintiffs rendered after trial before the court without a jury. Judgment reversed on the law and the facts, with costs, and complaint dismissed. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Concededly, the policy was cancelled by defendant by appropriate notices before the claimed loss was sustained. Plaintiffs had paid the premium on the policy to the local agent who had issued it to them, and they contended that this agent, when confronted with the notices of cancellation, told them “to forget about it.” Further, plaintiff Roberta Williams testified that when she telephoned to defendant’s office an unidentified person there also told her “ to forget about it.” However, plaintiffs were required to establish that the agent or the said unidentified person had authority to countermand defendant’s cancellation. (Cf. Hastalis v. Firemen’s Ins. Co. of Newark, N. J., 117 W. Va. 211" date_filed="1936-03-17" court="W. Va." case_name="Hastalis v. Firemen's Insurance Co. of Newark">117 W. Va. 211.) No proof of such authority was adduced. The required proof is not made by establishing the fact of the authority to issue policies and collect premiums. Nolan, P. J., Wenzel, Schmidt, Beldock and Ughetta, JJ., concur.