The value of such a stipulation as that contained in.the policy, by which an agent of the company, acting throughout within the scopé of his authority, is. nevertheless .by a stipulation in the agreement between the compáhy and its customer 'declared to be the agent of the latter, has been lately discussed by the. Supreme Court of this State. Will v. Postal Tel. C. Co., 3 App. Div. 22. That was a case of a telegraphic message, sent to the plaintiffs from the office of the company by one of its' messengers, with instructions to wait for an answer. The answer was intrusted to the messenger, who failed to deliver it at’the office . promptly. The blank on which it was written contained a condition to the effect that, whenever a message was sent to its office by one of its messengers, the messenger should be deemed- the agent of the sender; and. the company sought to avoid responsibility-for his .' negligence on that.ground. But the court held that the company could not thus exempt itself from the consequences of the gross ■ negligence in the use of an instrumentality which'itself had furnished. This wholesome doctrine can be readily applied to the case of an insurance-company which employs agents to solicit'insurance, and yet seeks to shield itself from the misconduct of such persons by incorporating in the application for insurance a stipulation that , he shall be deemed the agent, of the insured.
In the Will case the liability of the company was put'upon the additional ground that the messenger was undoubtedly the agent -of the company, because directed by it- to ask and wait for the answer and receive it, and that defendant, in so doing, ignored-and waived the rule of which it sought to avail itself. The reason applies as well to the case of an insurance agent authorized by the. company to receive applications, and in so doing acting in accordance with his authority.' '
Judgment affirmed, with costs.