
    Salvatore Romano, Respondent, v. The Concordia Fire Insurance Company, Appellant.
    Second Department,
    October 4, 1907.
    Insurance — principal and agent — authority of insurance broker — trial —litigation of issue not pleaded. -
    An insurance broker, not a regular agent of the insurer, has no authority to waive a provision in the policy that it shall be-void if the insured have any other insurance, whether valid or not, unless, so. agreed in writing indorsed on the policy. . .
    The fact that the name of the insured was erroneously stated in a prior policy does not make it void.
    Although in an action upon a policy the'insurcr does not plead its invalidity by . reason of prior insurance,, the defense becomes available when the plaintiff voluntarily introduces and litigates the issue.
    Hirschberg, P. J., and Woodward,'J., dissented, with memorandum.
    
      •Appeal, by the' defendant, The Concordia Fire. Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office'of the-clerkof the county of Westchester on the 17th day of October, .1906, upon the verdict of a jury rendered after á trial at the Westchester Trial Term. .
    
      William A. Walling, for the appellant.
    
      George J. McDonnell [Edward J. Kelly and Charles C. Smith with liim on the brief], for the respondent.
   Gaynor, J.:

The motion to dismiss should have been granted. - The defendant. claims that the policy of fire insurance sued upon was void ab initio, under the clause in it that it .should be void if the insured had any .other contract of insurance, whether Valid or n.ot ”, on the property insured, unless otherwise provided by an. agreement in writing indorsed on or addéd to the policy. ' There was no such agreement. The plaintiff liad a policy on the property in another company.' That liis name was erroneously stated therein as Sabito-Roumani did not make it invalid,: but it mattered not if it did; He testified, however, that he- told the broker who. solicited the. policy of the, prior insurance, and ..that, the latter said it was void.. It was error to submit to"the jury on this evidence whether there was a waiver by the defendant of the requirement of the policy iii respect of other insurance. The broker, Who.was not a regular agent of the defendant, much less its general agent, but a mere soliciting broker for companies generally, was not able to waive such requirement;' nor could it be waived except in the. manner prescribed by the policy (Baumgartel v. Providence Washington Ins. Co., 136 N. Y. 547, and cases there cited). This matter of other insurance is not trivial' but gravel.

The defendant did not-plead a breach of the said provision of the policy as a defense, which was necessary to enable' it to raise that issue, but the plaintiff needlessly introduced and insisted on litigate ing the question on the trial and must abide by the result.

The judgment- should be reversed.

Jenks and Milder, JJ., concurred ; Hirsohberó, P. ¿F.,'dissented in memorandum^ with whom Woodward, J., concurred, "

Hirschberg, P.' J.

(dissenting):

I dissent.' As I understand the- case, the-plaintiff is willing to abide, by the result.” On. the other hand, I see no' reason why the defendant should have a second trial of an issue not raised by its answer, -and which issue cannot he retried without an .amendment of the pleading.

Woodward, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.  