
    Frederick Beiermeister, Jr., and George A. Spicer, App’lts, v. The City of London Fire Ins. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Insurance (Fire)—Cancellation of policy.
    Plaintiffs had policies on their property amounting to $9,000, including one of $1,000 in the defendant company. One of the other policies being about to expire, one S. applied to the agent of defendant for a policy of $2,000 to cover both, but the agent refused to do so, offering to issue one in the N. company for that amount and cancel the one issued by defendant. This new policy was accepted by plaintiffs on the day of the fire, and they were immediately after the fire notified of the arrangement under which it was made. They permitted the insurance companies to include both the N. policy and that of defendant in the adjustment of the loss. Held, that by claiming under the N. policy they wére bound by the terms and conditions on which it was issued and could not hold defendant on its policy.
    Appeal from, judgment in favor of defendant, entered upon verdict directed by. the court.
    
      Smith & Wellington (C. B. Wellington, of counsel), for app’lts; C. S. & C. C. Lester (C. S. Lester, of counsel), for resp’t.
   Learned, P. J.

—After each party had rested, each asked the court to direct a verdict Before decision, the plaintiff, by leave, recalled a witness and gave further testimony. When the testimony had been given, the plaintiff asked to go to the jury. The court refused on the ground that each side had asked for the direction of a verdict, and that such request was an admission that there was no question of fact for the jury.

It is true that such request has been held to be an admission that, at the time it was made, there was no question of fact for the jury. But it could not be an admission that no question of fact for the jury would afterwards arise when, by permission of the court, further evidence had been given. We think, then, that the learned justice gave an incorrect reason for his refusal. But if, on the whole case, the refusal was proper, the incorrectness of the reason .is immaterial.

On the 7th of February, 1888, plaintiffs, among policies amounting in the aggregate to $9,000, had one of $1,000 in defendant’s company expiring the 12th. On that day one Stillman, whose relation towards plaintiff is not apparent, called on Carpenter, the defendant’s agent, and proposed to obtain from defendant for plaintiffs a $2,000 policy in place of. the $1,000 in the California Insurance Company, expiring the 8th. Cafpenter refused, because the defendant had directed him not to write policies on property out of Troy. But he offered to write a $2,000 in the Norwich Union, dated February 8th, of which also he was agent, and to to cancel the $1,000 in defendant’s company. To this Stillman assented. Carpenter wrote the policy and said: “I wish you would take this policy up there yourself and deliver it, so that there can’t be any mistake about the cancellation of the City of London policy.”

The Norwich Union policy was received by plaintiff the 8th, and was sent back for correction in respect to the name of the insured, was corrected and returned and received by plaintiff, as corrected, the morning of the 9th. In the afternoon the insured property was burned. After the fire, and before the settlement with the companies, the plaintiffs were informed by Carpenter of the arrangement under which this policy was issued. As to this point the plaintiff claims that there is a conflict of evidence. But the plaintiff Beiermeister contradicts himself, and the testimony of Carpenter is positive. Beiermeister first admits and then denies his knowledge.

The plaintiff Beiermeister testifies that after the fire, and after waiting a few weeks for the insurance companies to settle, they, the companies, finally decided that the policy in question must go in and bear part of the loss, and that he said he would do as they said. And the plaintiffs in their proofs of loss in this case include both the Norwich Union policy of $2,000, and the defendant’s policy of $1,000, making the aggregate of $10,000, or $1,000 more than the aggregate which they had on the 7th of February. And the plaintiffs received from the Norwich Union their proportion of the loss, based on that aggregate.

Now, it is evident that it was for the interest of the companies, other than defendant, to claim that defendant’s policy was in force, as such claim, if allowed, diminished their relative proportion. But if the plaintiffs consented to admit such claim of the companies and to act thereon, they must accept the consequences of their action.

As Carpenter was agent both of the defendant and of the Norwich Union, each of those companies had knowledge of the terms and conditions on which the policy of the Norwich Union was written. And the defendant is entitled to the benefit of such terms and conditions, provided they can be shown to be binding upon the plaintiffs.

There is no evidence that the plaintiffs had desired before the fire to increase their insurance from $9,000 to $10,000. After the fire, and before any payment of the loss or even demand for payment, the plaintiffs were notified that there was no real increase, but that the Norwich Union policy was in the place of the California policy and the defendant’s. Perhaps then they could have rejected the. arrangement between Carpenter and Stillman. They could have accepted the loss of the California policy, which had expired on the 8th, and could have claimed to hold only the defendant. If they had taken that position, they would have assumed to have only $8,000 insurance in the aggregate. This would probably have been unsatisfactory to them. But they did not do this. Ón the contrary, they claimed the Norwich Union policy to be valid and in force. Therefore, they must be bound by the terms and conditions on which it was issued.

We think a verdict was properly directed for the defendants.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.  