The motion to dismiss should have been granted. - The defendant. claims that the policy of fire insurance sued upon was void ab initio, under the clause in it that it .should be void if the insured had any .other contract of insurance, “ whether Valid or n.ot ”, on the property insured, unless otherwise provided by an. agreement in writing indorsed on or addéd to the policy. ' There was no such agreement. The plaintiff liad a policy on the property in another company.' That liis name was erroneously stated therein as Sabito-Roumani did not make it invalid,: but it mattered not if it did; He testified, however, that he- told the broker who. solicited the. policy of the, prior insurance, and ..that, the latter said it was void.. It was error to submit to"the jury on this evidence whether there was a waiver by the defendant of the requirement of the policy iii respect of other insurance. The broker, Who.was not a regular agent of the defendant, much less its general agent, but a mere soliciting broker for companies generally, was not able to waive such requirement;' nor could it be waived except in the. manner prescribed by the policy (Baumgartel v. Providence Washington Ins. Co., 136 N. Y. 547, and cases there cited). This matter of other insurance is not trivial' but gravel.
The defendant did not-plead a breach of the said provision of the policy as a defense, which was necessary to enable' it to raise that issue, but the plaintiff needlessly introduced and insisted on litigate ing the question on the trial and must abide by the result.
The judgment- should be reversed.
Jenks and Milder, JJ., concurred ; Hirsohberó, P. ¿F.,'dissented in memorandum^ with whom Woodward, J., concurred, "