Manhattan Fire Insurance v. Harlem River Lumber & Woodworking Co. , 56 N.Y.S. 186 ( 1899 )

Freedman, P. J.

This action was brought to recover for one month’s premium upon a policy of insurance issued by the plaintiff on the 19th day of April, 1898, and retained by the defendant until May 2, 1898, when it was returned to Porter & Anderson, insurance brokers of the city of Hew York, through whom it had been obtained, and which policy insured the property of the defendant against loss by fire.

The policy, by its terms, provides that in case the insured should, at any time, request the cancellation of the policy, what is known as “ short rates ” should be charged by the company, being as shown on the trial 20 per cent, of the amount of the annual premium if the policy is cancelled within one month from the date of issue, amounting, in this case, to the sum of $30.64.

There is no dispute upon the material facts proven upon the trial, and, therefore, a question of law only is presented for the determination of the court. Birdsall v. Russell, 29 N. Y. 220; Brady v. Cassidy, 104 id. 147.

The contention of the defendant on the trial and upon this appeal is that the firm of Porter & Anderson had no authority to procure the policy in question, their right to obtain insurance for and on behalf of the defendant having been terminated by a letter sent by defendant and received by said firm April 15, 1898.

The policy in question was procured by Porter & Anderson to replace one in another company upon the same property, which policy had been returned to Porter & Anderson by the defendant April 18, 1898.

By the defendant’s letter of April 15, 1898, Porter & Anderson were directed by defendant, not to write any more insurance for it (defendant) until requested to do so. The letter also contained a request that Porter & Anderson quote defendant rates in good stock companies, etc. On April 20, 1898, the defendant received the policy in question from Porter & Anderson and was informed that it was to replace the cancelled one previously returned by defendant. On the same day the defendant wrote Porter & Anderson acknowledging the receipt of the policy, which letter also contained these words, “ Do not write any new policies without authorization from us.” The witness Anderson, one of the firm of Porter & Anderson, testifies, that he did not consider the obtaining of the policy in question prohibited by the letter of April 15, 1898, as he considered that it was- not “ new ” business but a renewal of an old policy his firm had previously taken out for defendant and which had been returned and cancelled, and that seems to have been the view taken by the defendant as when it acknowledged the receipt of the policy on April 20, 1898, it says, “Do not write any new policies without authorization from us.”

The plaintiff issued the policy in question in the regular order of business and without notice of the relations existing between the •defendant and Porter & Anderson. The manager of the defendant testified that he took the policy in question to a broker for his •examination intending to keep the policy if the company “ stood well.” No objection, however, was made to the standing of the company when the policy was returned or upon the trial.

Porter & Anderson were the agents of the defendant and not the agents of the plaintiff in obtaining the insurance. Wilber v. W. C. F. Ins. Co., 122 N. Y. 439.

The plaintiff was undoubtedly liable upon the policy in case of a loss while in the hands of the defendant. Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y. 343-351.

The defendant if it intended to repudiate the act of Porter & Anderson was required to act promptly and to disaffirm at once, and only slight acts of confirmation on its part were necessary to be shown. Myers v. Mutual Life Ins. Co., 32 Hun, 321-327.

The retention' of the policy in question from “April 20th until May 2, 1898, taken in connection with all the facts and circumstances in the case should be regarded as a ratification of the act of Porter & Anderson so far as it affects the right of the plaintiff to recover for the short period claimed in the complaint.

The judgment should be reversel and a new trial ordered, with •costs to the appellant to abide the event.

MacLean and Leventritt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.