In holding that the complaint was properly dismissed by the Appellate Division, we confine our decision to the action now before us. We leave open the question whether the plaintiff may recover his commissions on the basis of the short rate premium which the defendant failed to exact in canceling the policies. That is not the theory either of the complaint or of the trial. The complaint was framed and the action tried upon the theory that the cancellation was ineffective and that the policies remained in force.
The judgment should be affirmed with costs.
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, CRANE and ANDREWS, JJ., concur; McLAUGHLIN, J., not sitting.
Judgment affirmed.