
    First National Bank of Waterloo, Respondent, v. Lillian C. Shamon, Doing Business as Carmody Insurance Agency, Appellant.
   Judgment and order unanimously reversed and complaint dismissed; judgment directed for defendant on the counterclaim in the amount of $762.29, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: The funds transmitted to defendant broker in payment of premiums due for comprehensive and collision insurance coverage on trucks being purchased by Reese were moneys which had been loaned to Reese by plaintiff and for which Reese had obligated himself to repay plaintiff. The insurance was being purchased for and by Reese; the broker was acting as his agent, not as agent for the lending plaintiff, which was only a loss payee on the policy. The policy was never assigned to plaintiff. Plaintiff in this action can neither recover nor retain the refund of the unearned premiums which, as between the lender and the borrower, have become the property of the borrower. (Appeal from judgment of Seneca Trial Term without a jury, for plaintiff in an action to recover return premium on cancelled insurance policies; and from an order denying defendant’s motion for a new trial.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Veechio, JJ.  