
    Michael Hickey, Respondent, v. The Hartford Fire Insurance Company, Appellant.
    
      Mre insurance — mistake — surrender of a policy, conditional upon the issue of a new policy.
    
    In an action brought to recover upon a policy of insurance,- it appeared that the plaintiff owned a “ home farm,” and also another farm, a mile distant, known as the “Knapp farm,” the latter being insured by the defendant at the Owego agency of the company, and the former by another company at the Montrose agency. The plaintiff built a new barn on the “home farm,” and, by mistake, applied to the defendant’s agent to insure it. The agent, who thought the new barn was on the “Knapp farm,” on August twelfth wrote a new policy to cover all the buildings on that farm and delivered it to the plaintiff, who paid the premiums and promised to return the old policy, which was canceled by the agent upon his books.
    The plaintiff subsequently discovered the error, mailed the agent the new policy, asked him to let the old policy stand and to issue a further policy upon the new barn, and retained the old policy. The agent agreed to issue another policy, but had not returned any premium nor issued this policy when the new barn was burned.
    
      Held, that the policy of August twelfth remained in force, as the plaintiff did not send it to the agent for cancellation, except upon condition that he should issue a policy upon the new barn and reinstate the old policy, conditions which were never performed by the agent.
    Appeal by the defendant, The Hartford Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 1st day of July, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7tli day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover upon a policy of insurance, plaintiff’s loss by fire upon his barn and contents. The defense was that the policy had been canceled before the fire. A former judgment for defendant sustaining that defense was reversed by the General Term. (92 Hun, 192.)
    
      Horace McGuire, for the appellant.
    
      Martin S. Lynch, for the respondent.
   Landon, J.:

We think the evidence fully sustains the verdict. The defendant had, by its policy of August 12, 1893, insured the barn in question, which stood upon the plaintiff’s home farm. The single question which the court submitted to the jury ivas whether the policy had been canceled, and no request ivas made to submit the question whether the barn destroyed was the one covered by the policy.

The plaintiff was the owner of two farms, one his home farm, and the other the Knapp farm, about a mile away. His buildings upon the Knapp farm were insured by the defendant at the Owego agency, Mr. Hoskins being defendant’s agent there, but his buildings upon his home farm were insured by another company at the Montrose agency.

In August, 1893, the plaintiff, having erected a new barn upon his home place, desired to have it insured. Not recollecting at the time that his home buildings were insured in the Montrose agency, he called upon Mr. Hoskins at defendant’s Owego agency and, describing his new barn, aske'd to have it insured. Mr. Hoskins had in mind the policy he had issued upon the buildings upon the Knapp farm, and understanding that the new barn was upon an adjoining farm, and not wishing to insure a barn unless he also insured the other farm buildings with it, proposed that the old policy be surrendered and a new one issued covering all the buildings. The plaintiff consented and Mr. Hoskins Avrote the new policy, intending it to cover the buildings upon the Knapp farm and the new barn. The plaintiff paid Mr. Hoskins the premium upon the neAV policy, less the rebate upon the- old one, and took the new policy home, promising to send Mr. Hoskins the old policy. Mr. Hoskins made an entry upon his books canceling the old policy. Upon arriving home and looking at the old policy and the Montrose policy upon his home buildings, the plaintiff thought his insurance ivas so mixed that it was not clear what he had. He thereupon sent his new policy by mail to Mr. Hoskins, writing him that there Avas a mistake and that he wanted a separate policy for the new barn, and to leave the old policy as it Avas before. He did not then send the old policy to Mr. Hoskins. Mr. Hoskins answered the plaintiff by letter: “ Send me in your old policy and I will send you out a new one.” The plaintiff called at the Owego agency a few days later, having the old policy with him, but Hr. Hoskins was absent, and the plaintiff, at the suggestion of a clerk or helper in the office, who also advised him to wait until Hr. Hoskins should return, retained the old policy. Upon Hr. Hoskins’ return home, he made entries which, if plaintiff had surrendered it unconditionally, canceled the policy sued upon. He did not return to the plaintiff the premium paid by him, nor notify him that he had canceled the policy. The fire occurred a few days later.

Upon these facts, we think the jury were justified in finding that the plaintiff did not send the new policy of August 12, 1893, to Hr. Hoskins to be canceled, except upon the condition that he issue a separate policy upon the new barn and reinstate the old policy upon the Knapp farm buildings, and as Hr. Hoskins did not comply with this condition, and the parties did not agree upon any other, the policy of August twelfth remained in force at the time of the fire.

The defendant urges some exceptions to the admission of evidence, touching remarks of Hr. Hoskins after the fire. The decisive question in the case was whether the plaintiff surrendered the new policy unconditionally. That depended upon the letter which he sent to Hr. Hoskins with the new policy, and not upon any remarks of Hoskins after the fire. It is not claimed that any other terms were ever made. The remarks objected to, whether in or out of the case, could not affect the result.

Judgment and order affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  