William D. Murray, for appellant.
Leo J. Rossett, for respondent.
The plaintiff sued for the "short rate" premium for the month of November, 1912, on a policy of fire insurance issued at the instance of defendant.
Defendant moved to dismiss at the close of plaintiff's case and renewed the motion at the close of the entire case on the grounds, first, that the insurance was to cover a permanent loan and that no such loan was made until November twenty-second. Second, that as no money (premium) was paid no "short rate" could be recovered. Third, as it did not appear that a permanent loan was made there could be no delivery of a policy.
The case seems to have been tried and decided below on these supposed questions of law, though others are also referred to in the briefs. It is quite apparent that the permanent loan has no relation to the issues in this case.
The only questions are: Whether defendant authorized the issuance of the policy and whether it was thereafter duly issued. The question of authority will have to be decided in face of a conflict of evidence on that point. The admitted delivery of the policy to the agent (if he was agent) was a sufficient delivery to the principal. Singer v. National Fire Ins. Co., 154 A.D. 783. In my opinion, however, the plaintiff cannot charge the "short-rate" on the theory that the policy was cancelled by request of the assured. The authority which it cites to the effect that a broker employed to effect insurance may be regarded as clothed with full authority to cancel it ( Standard Oil Co. v. Triumph Ins. Co., 64 N.Y. 85) so holds only in respect to a broker who had general authority to transact all the business of his employer, and this distinction is pointed out in Hermann v. Niagara Fire Ins. Co., 100 N.Y. 411, 415. Indeed, so far as the case at bar is concerned, the very opposite of what plaintiff claims is decided in Stilwell v. Mutual Life Ins. Co., 72 N.Y. 385.
As the judgment in this case is manifestly based on an erroneous theory of law, it must be reversed and a new trial ordered with costs to appellant to abide the event.
SEABURY and GUY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.