Michaels v. Agricultural Insurance ( 1975 )

Memorandum. The order should be affirmed.

In this action for breach of a contract allegedly entered into on behalf of each of the parties by professional insurance adjusters, the burden of proof to establish that the insurance companies’ adjuster had authority to bind his principal to a settlement was on the plaintiff (Dudley v Perkins, 235 NY 448, 455; Warren v Commercial Cas. Ins. Co., 241 App Div 913; 21 Appleman, Insurance, § 12338, p 255). Such authority cannot be proved by an agent’s own statements or declarations (Hotel Atlantis v Peerless Cas. Co., 285 F2d 257, 260; Warren v Commercial Cas. Ins. Co., supra; Declarations as to Scope of Agency, Ann., 3 ALR2d 598, 603). Although the jury could have found that there was enough evidence in this case to support a finding that the two adjusters had reached an oral agreement on the terms of a settlement, there was insufficient proof of either apparent or actual authority in the companies’ adjuster to do so (Bush v Westchester Fire Ins. Co., 63 NY 531; Hotel Atlantis v Peerless Ins. Co., supra, pp 259-260; 4 Couch Insurance [2d ed], § 26:326; cf. Nichols v Jamestown Mut. Ins. Co., 271 App Div 1059).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.