A former judgment obtained by the plaintiff against this defendant on the theory that a policy of fire insurance had been issued and delivered by the defendant was reversed by this court (139 App. Div. 407) on the ground that the facts proven did not warrant a recovery. Without any amendment of the complaint before trial another verdict has been obtained on the theory that there was a breach of an oral contract to issue a policy of insurance. At the outset of the second trial the defendant protested that the complaint was insufficient to warrant a recovery on this theory arid made proper obj eetion to the introduction of evidence tending to establish such a cause of action. The learned trial court held *923that notwithstanding the allegations with respect to the issuing Of a policy sufficient facts were pleaded to authorize a recovery upon breach of an oral contract to issue a policy. The material facts in controversy are the same as those appearing on the first trial, and they are stated by me in my former opinion, and it is unnecessary to repeat them. I cannot assent to the proposition that the complaint states facts sufficient to warrant a recovery of damages for breach of an oral contract to issue a policy of insurance. The complaint is clearly based upon an actual policy which is repeatedly referred to therein. It is alleged that a policy was issued by the defendant and its number is given; its delivery to the mortgagee is stated and fraudulent concealment of its surrender complained of. Nowhere in the complaint is it specifically alleged that the RusseBs, former agents of the defendant, expressly agreed to issue a policy. It is only aHeged that the Bussells were notified that the plaintiff desired a renewal and that he “ accepted ” such renewal, which was alleged to be the policy described by number. It cannot be said that recovery was had only on the theory of breach of an oral contract to deliver a policy as distinguished from an agreement to issue a policy, for such a contract alone would not be sufficient because it involves and presupposes a prior valid oral agreement to issue one. The plaintiff cannot succeed on his present theory unless his complaint states a cause of action to recover for a breach of an oral contract to issue a policy of insurance. Such a contract, in my opini on, is not pleaded. A plaintiff is not permitted to prove and recover upon a whoHy different cause of action from that stated in his complaint, where seasonable objection is made by the defendant. (Northam v. Dutchess County Mutual Ins. Co., 177 N. Y. 73; Hill v. Weidenger, 110 App. Div. 683.) Insuchacase the pleadings cannot after the trial be amended so as to conform to the proof whether the defendant was misled or not. (Southwick v. First National Bank of Memphis, 84 N. Y. 420.) But if it be assumed that the complaint properly sets forth a cause of action for breach of an oral contract to issue a policy of insurance still I think the plaintiff is not entitled to recover. Confessedly the RusseBs were not agents of the defendant company when the plaintiff thought they were procuring a renewal of his policy, and they had not been such agents for a year or more. I cannot subscribe to the doctrine that they continued to be agents of the defendant company as to this plaintiff until he was notified that they had ceased to be such. Of course it is a rule of law that where one has constituted another his agent those accustomed to deal with him as such may continue to do so until they have notice that his authority is revoked, but it cannot be that such rule applies to the customary dealings between fire insurance agents and persons applying for insurance policies. Ordinarily such agents represent several companies at the same time' and distribute risks amongst them as they may secure applications for insurance. An agent often ceases to represent a certain company and takes the agency for another one. The usual course of dealing is for the person desiring insurance to apply to the agent and he selects the companies unless a special company is demanded. When a policy expires the agent issues, without application, another in its place. Such renewal insurance *924may be in the same company originally insuring or it may be in another. Policies of all companies are alike under the law, and the only anxiety of the insured is that a solvent company be selected. The insured may expect that a renewal will be by the same company that insured his property originally, but he does not regard that as a necessity nor usually demand it. Such was the manner of doing business between the Russells and this plaintiff. The former policy issued by this defendant was about expiring. The Russells of their own motion, set about getting a renewal. They had ceased to represent the defendant and applied to the agents who had succeeded them. They seemed a policy which the defendant refused to sanction, and before it became operative it was recalled. Prom the bill sent him plaintiff supposed they had secured a ren'ewal policy from the defendant company, but he did not demand that the renewal insurance should be by the defendant company and did not make any express bargain with the Russells that they should issue a policy of the defendant company. The Russells were really acting for the plaintiff in securing the renewal insurance and led him to believe, if his testimony be true, that they had secured it; but that fact did not justify the plaintiff in selecting the defendant company as the company which the Russells had orally agreed to bind, if they made any oral agreement to issue any policy. The plaintiff might, with equal propriety, have picked out to hold liable for his loss any other company for which they were agents. The only reason he selected the defendant company, apparently, was that the Russells had attempted to obtain a policy for him in the defendant company through Rose & Kiernan, its agents, and had, in fact, succeeded in having one written by them but which was not accepted by the company and of which fact the Russells failed to notify the plaintiff. If there be any cause of action it lies against the Russells and not against this defendant. I, therefore, vote for a reversal of the judgment. Kellogg, J., concurred, on last ground stated.