
    Cecil A. Brackett, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Supreme Court, Appellate Term,
    October, 1896.)
    Life insurance — Soliciting agent — Commissions.
    Where a soliciting agent induces a person to make an application for a policy in his company for $5,000, and subsequently another agent of the same .company induces the applicant to withdraw from that contract and to substitute an application for, and actually receive, a policy for $10,000, in the same company, the first agent is only entitled to commissions on $5,000, notwithstanding the fact that he was the person who introduced the insured to the company and, probably, was the indirect means of bringing about the additional $5,000 worth of insurance.
    Appeal from judgment of Eighth Judicial District Court in favor of plaintiff.
    Bert Hanson, for appellant.
    H. Bell, for,respondent.
   Bischoff, J.

The plaintiff was a soliciting agent for 'life insurance in the employ of the ‘defendant, with an agreement for compensation based upon the amount of insurance procured by his efforts, and this action is brought to recover the commissions which he claims to be due him for procuring a policy upon the life of one Dean for $10,000. The evidence shows that the plaintiff actually solicited and obtained from Dean an application for a policy of $5,000, and that he was paid his commission upon such policy, but thereafter one Gray, an agent of the defendant, called upon the insured and prevailed upon him to substitute an application and receive a policy for $10,000.

The plaintiff’s claim is for commission upon the additional $.5,000 of insurance .thus taken out, but clearly he failed to substantiate it by proof at the trial. True, he introduced the insured, Dean, to-the defendant, and but for that introduction this additional $5,000 of insurance might-not have been secured, but the insurance which he actually obtained was limited to the amount of the ¡first application, and the defendant, through Gray, procured the remainder. . Granted, also, that Dean had intended, at the time of his first application, to subsequently take out an additional insurr anee of $5,000, but his evidence was that he contemplated so contracting with some insurance company other than the defendant, and the proof is that he was induced to change his intention, not through the plaintiff’s efforts, hut through the agency of Gray.

A finding that the plaintiff’s influence with Dean extended to this additional' insurance could he founded only upon the merest conjecture and the preponderance of the evidence was all to the contrary. Close analogy appears between this case and that of McClave v. Paine, 49 N. Y. 561, and upon the principles there applied, this recovery cannot be sustained.

judgment reversed and .new trial ordered, with costs to appellant to abide event.

Daly, P. J., and MoAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  