Collins v. Phœnix Insurance

Barnard, P. J.:

I think the case should have gone to the jury, under proper instructions from the court. Applying the rule that all -questions of fact are to be deemed as found in favor of plaintiff, the facts are as follows: A Mr Coles 'White *was an insurance broker, with an office at Flushing, Queens county. The defendant had an agent, Mr. Swinson, at Brooklyn. White had been in the habit of obtaining insurance in defendant’s company and other companies, for which Swinson was agent. The course of business was for White to accept the risk, take the premiums, and subsequently obtain the policy from Swinson, as of the date when the risk was accepted. On the 3d of November, 1876, plaintiff obtained insurance for one year on his barn and contents from Mr. White, and paid him the premiums.

On the same day White sent the risk to Swinson. On the 6th of November, 1876, the defendant’s company, through Swinson, sent the policy, on which this action is brought, to White and he delivered it to plaintiff. On the 4th of November, 1876, the property was entirely consumed by fire. ■ All parties were ignorant of the fire, until after the policy was delivered to plaintiff. White was either the agent of the defendant, or of Swinson, who was an agent of defendant, with power to issue policies. If of the company, his contract was good, made .on the 3d of November, and evidenced by the policy subsequently given; if he was only the agent of Swinson, then, assuming, that Swinson had the power to either ratify or withhold ratification from the contract, made by White, when it was ratified it operated from the date of the contract. There was the usual course of business between Swim son and White. The policy, in all cases, was of the date of the contract with White.

The judgment should be reversed and a new .trial grantee], costs to abide event.

Gilbert, J., concurred; Dykman, J., not sitting.

Exception sustained ^ and new trial granted, costs to abide event.