Margotta v. American Motorists Insurance , 130 N.Y.S.2d 319 ( 1954 )

Respondent is the insured under a policy of insurance issued by appellant. Respondent’s automobile was damaged by upset, but the policy does not cover such damage. In this action respondent sues to recover upon an alleged agreement made with appellant’s adjuster, under which respondent agreed to surrender his car to appellant and furnish appellant with verified proofs of loss and to be paid the amount agreed upon in settlement. After performance by respondent, appellant notified respondent that the policy does not cover the loss. Meanwhile, the car had been sold by a third party to whom it had been delivered by respondent. The proceeds of sale have been tendered to both respondent and appellant, but each refuses acceptance. Respondent had a verdict for the value of the ear in the amount agreed upon. Judgment entered on the verdict reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The verdict is against the weight of the evidence. Without the hearsay evidence as to what the appellant had agreed to, the contract on which respondent recovered was not proved. Without that evidence the proof was not sufficient to establish that the adjuster had authority to make the agreement. Nolan, P. J., Adel, Wenzel, MacCrate and Murphy, JJ., concur.