
    BINI v. SMITH.
    (Supreme Court, Appellate Division, Second Department.
    January 31, 1899.)
    1. Insurance—Policy Provisions—Waiver—Evidence.
    Underwriters intrusted a broker with a policy for insurance, which he procured, and permitted him to receive the premium. The broker had a running account with W., the underwriters’ general manager, in which •the premium was charged, and, being indebted for other piremiums for which he had failed to account, gave W. his note for the balance due on the account, and W. subsequently declared that he would be held personally liable for such unpaid premiums. It also appeared that it was the custom of insurance companies to extend credit to brokers for premiums, which were charged to their account, as soon as notice was received that they have placed the insurance, iHeld sufficient to constitute a waiver of a provision of the policy that “no person not authorized in writing should be deemed the underwriters’ agent.”
    2. Same—Insurance Broker—Underwriters’ Agent—Evidence.
    The evidence was also sufficient to constitute the broker the underwriters’ agent to deliver the policy and collect the premiums, and hence they were liable for a loss, though the premium was never accounted for.
    3. Same—Property Destroyed—Evidence op Value.
    In an action on a policy, the cost of the property destroyed is some evidence of its value.
    4. Same—Proofs of Loss—Objections—Waiver.
    Where proofs of loss furnished to underwriters were returned solely on the ground that the policy had been canceled for nonpayment of premium, all other objections thereto were waived.
    5. Same—Evidence of Value.
    While proofs of loss are not evidence of the value of property destroyed at the time of the fire, they are competent to refresh the memory of a witness as to the cost of the property;' and if, when introduced in evidence without objection as the witness’ answer, they show such cost to be much greater than the insurance, they constitute sufficient evidence of value.
    Appeal from trial term, Richmond county.
    Action by Tito Bini against John Smith. From a judgment dismissing complainant’s claim on the merits, he appeals.
    Reversed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    William W. Niles, Jr., for appellant.
    Willis B. Dowd, for respondent.
   GOODRICH, P. J.

The action was brought to recover an aliquot part of $1,000 on a Lloyd's policy of insurance for $1,000, issued to the plaintiff upon an hotel in Southfield, in the county of Richmond, and certain personal property therein, each of the subscribers underwriting $76.92. The defense was based chiefly upon the ground that the policy was issued without the authority of the defendant, and without consideration,—that is, payment of premium,—and that about four months after its issue it was duly canceled in accordance with its terms. The parties stipulated for a trial before a justice of this court without a jury, and, after the proofs of the parties had been submitted, the justice rendered a decision dismissing the complaint upon the merits, and from the judgment entered thereon the plaintiff appeals.

The learned justice gave as reasons for his decision that the plaintiff paid the premium to one Alden, an insurance broker, instead of paying the same to Warbrick, the agent and manager of the underwriters, and that Alden was the agent of the plaintiff, and not of the defendant. He also found that there was no proof of the value of the property, and that there was other insurance.

The first and crucial question relates to the payment of the premium. The policy contains a clause as follows: “In any matter relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of the underwriters.” There is no doubt that this provision may be waived by the action of the underwriters and their general manager. In Tooker v. Trust Co., 26 App. Div. 372, 49 N. Y. Supp. 814, we held that the condition of a policy of insurance as to the payment of the premium in actual cash was waived by the company, under the facts in that case, although the policy contained a provision requiring the payment of the premiums in advance. In Cahill v. Insurance Co., 5 Biss. 211, Fed. Cas. No. 2,289, one Doud, an insurance solicitor, who was not in the employ of the company, had procured the privilege of placing insurance, and had secured from the plaintiff a risk, receiving a premium, which he never paid to the company. He delivered the policy to the plaintiff upon the receipt of the premium. The court held that, inasmuch as the company issued the policy and intrusted it to Doud, he became the representative of the company, as between the insurer and insured, for the specific transaction; that is, for the delivery of the policy and receipt of the premium.

The evidence in the case at bar shows that Alden was an insurance broker, and had been in the habit of soliciting insurance, and placing it with the present underwriters, through Warbrick, their attorney and manager; that a running account was kept between Alden and Warbrick; that the policy was issued on January 4, 1896, countersigned by Warbrick as attorney and manager, and handed to Alden, who delivered it to the plaintiff, and received the premium; that there Avas an account against Alden on the books of Warbrick, in which Alden was charged with the amounts of the plaintiff's premiums; and that it was not until May that Warbrick insisted upon the payment of the premium by Alden. On March 18th Warbrick wrote Alden a letter, in which he said:

“You have collected certain premiums belonging to us, Avliere you are entitled to commission consideration, and, through misfortune or otherwise, you have been called upon to use these funds, not your own. That, in lieu of the actual cash, for settlement, you have so far compromised that you have given notes, as also extension of notes, and these extended notes you cannot meet. Noav, practically, there should have been no notes whatever, or any time consideration; and I look upon it and the transaction in question as taking advantage of our good feeling and natural kindness to you. You should meet these obligations to us, provided you had to part Avith every dollar in the world, for the simple reason we have trusted to your good faith and your purpose to do right and refund that which was not your own. I can only say, further, that I shall be held accountable personally for the balance of your account. My committee say that I had the option to cancel policies, and that I preferred to accept time loans for the premiums, which really I had no right to do, without accepting the responsibility, and I accept the ultimatum. There is no desire on my part to press you for payment of the notes other than our old friendship will warrant. But as you can view the situation just as well as the writer, and that the writer is in no position in these dull times either to advance premiums or be responsible for any unsettled account, I must call upon every one whó are in arrears to settle up, and you are among the number.”

War brick also testified as follows:

“Q. Is it not the custom of insurance companies to extend a credit to-brokers? A. That is a custom in insurance business. Yes, sir; for premiums due upon policies issued. We simply did in this case with Alden as was the custom with other brokers. There are a thousand cases of the same kind. Q. The credit was not to the assured, but to the broker? A. To the broker. * * * Q. by the Court: The number appearing after the name Tito Bini, on the page, under date of January 4, 1896, 3,062, is the same number as the policy in suit, isn’t it? A. Yes, sir. Q. And the debit there, as against Alden, was for the premium for this policy Exhibit 1? A. No debit at all; it is marked off,—canceled. Q. It had been previously debited as a'gainst Alden? A. All charged against Alden. * * * Q. Isn’t it a universal habit in insurance, as soon as you get notice from a broker he has placed insurance, to make a memorandum of the polios’-, so as to keep track of it? A. I could not do business otherwise. It is a fact we enter it right up against the broker’s account; and when he collects the premium, and turns it in, we merely mark it off on the book.”

We think these facts are sufficient to constitute a waiver of the provision of the policy, as to the agency of Alden, and that he was the agent of the underwriters for the specific purpose of delivering the policy which had been intrusted to him and the collecting of the premium from the plaintiff.

The defendant also contends that there was no proof of the value of the property destroyed. There was evidence that the building-had cost more than $7,000, and that the household furniture cost $639. The question was then asked:

“Q. Wliat did the bar and barroom fixtures cost you? If you. cannot recollect, look at that statement, and sas*. Now, first, the stock of liquors? The Court: Exhibit your proofs of loss. The proofs of loss are offered in evidence, marked ‘Exhibit 4.’ ”

It is well settled that the cost of property is some evidence of its value. Hangen v. Hachemeister, 114 N. Y. 566, 21 N. E. 1046; Smith v. Griffith, 3 Hill, 333; Hawver v. Bell, 141 N. Y. 140, 36 N. E. 6. Apparently the court accepted the proofs of loss, there being-no objection made upon this specific point, as evidence of the value of the property at the time of the fire. The question is now raised that the proofs of loss are not evidence of the value of the property at the time of the fire. They are not evidence for that purpose, and we do not understand that the appellant makes any such claim, oi that the proofs of loss were introduced for that purpose. The policy required the assured, in case of fire, to furnish the underwriters, as part of the proofs of loss, a statement of the “quantity and cost of each article” and the “cash value of each item”; and there was evidence that proofs of loss had been duly furnished, which were returned by the company, solely upon the ground that the premium had not been paid, and that the policy had been canceled for that reason. Such a specific objection waived all other objections to the proofs of loss. Francis v. Insurance Co., 6 Cow. 404.

Only a summary of the proofs of loss is printed in the record. but it appears by this that they were “the customary proofs of loss, containing a statement of * * * the cash value of the property, -$5,741.50.” The witness was asked as to the cost of the bar and barroom fixtures and the stock of liquors, and his counsel said: “If you cannot recollect, look at that statement [proofs of loss], and say.” The court directed the plaintiff to exhibit the proofs of loss, and they were offered and received in evidence without objection or exception. It does not appear that the witness answered the question as to cost otherwise than by putting the statement in evidence. Clearly, the evidence was competent, not to afford proof of cost or value, but to refresh the memory of the witness, and the receipt in evidence of the proofs of loss was practically equivalent to an answer that the cost was the amount stated in them. This is the only deduction which can be made, viz. that the proofs were understood by court and counsel to state the cost of the articles, and the putting of the proofs in evidence was the answer of the witness that the cost was that named therein. We think, therefore, that there was evidence of value sufficient to cover the amount insured.

The dismissal of the complaint on its merits was error, and the judgment must be reversed, and a new trial granted.

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