
    Ephraim Karelson, Resp’t, v. Sun Fire Office, App’lt.
    
      (Supreme Court, General Term,, First Department,
    
    
      Filed May 18, 1888.)
    
    Insurance (Fire)—Notice op cancellation op policy—When unreasonable.
    On September 2, 1885, the plaintiffs employed certain brokers to procure for them a line of insurance. The brokers took what is known as a binding slip to the defendants, who agreed to make the insurance and signed the binding slip and returned it to the brokers, who immediately sent it to the plaintiff. On the third of September about twelve o’clock in the day the defendant sent notice to the brokers, that they would not be bound. The plaintiffs’ property was destroyed by fire, which broke out about three o’clock on the afternoon of that day. Held, that the notice was unreasonable and cannot be permitted to absolve the defendant from responsibility.
    Appeal from judgment on verdict.
    
      C. B. Alexander, for app’lt; A. L. Sanger, for resp’t.
   Brady, J.

On the 2d of September, 1885, the plaintiffs employed certain brokers to procure a line of insurance on their property. They took what is known as a binding slip to different companies; amongst others to the defendants, who agreed to make the insurance, signed the binding slip and returned it to the brokers. By the slip the defendants insured the plaintiffs in the sum of $2,500 for twelve months from the date mentioned, and the slip was to be binding upon them until the regular policy of insurance was made out and delivered at the office of the brokers. On the day mentioned the brokers, forwarded the slip to the plaintiff, who had possession of it from that time until the day of the trial herein. The brokers were engaged only for the

Sose of securing the insurance mentioned, and had no ority to do anything more.

On the 3rd of September, at about three o’clock, notice was sent to the brokers that the defendant would not be bound: but fifteen minutes later, as claimed by the plaintiffs, the defendants sent word that they would take the risk, and again at four o’clock that they would not. The brokers notified them that it was too late that afternoon to get them off the risk. The plaintiffs’ property was destroyed by fire, which broke out about three o’clock on the afternoon of that day.

The defendants insisted, and gave evidence tending to show that the notice mentioned was served about twelve o’clock on the day of the fire, and that certain representations in reference to the risk which were fraudulent had been made; and further urged as an objection to the plaintffs’ recovery that the proofs of loss were not such as were contemplated by the policy.

In reference to'the last suggestion, it is sufficient to say that on a former appeal (9 N. Y. State Rep., 831), that question was disposed of adversely to the defendant. It is quite manifest that the defense was placed upon the ground that no contract of insurance existed at the time of the fire. This was based upon a condition of the policy recently adopted by the defendant, which authorized them to serve notice on the broker who procured the insurance of an intention to avoid the contract.

The issues arising upon the alleged misrepresentations were submitted to the jury upon the proofs taken which were in conflict, and the jury having found in favor of the plaintiffs'the disposition made of them cannot be disturbed, for no legal principle can be invoked which would justify the opposite course.

The right of the defendants to rely upon the condition of the policy just referred to, authorizing the service by them of notice cancelling the policy of insurance, assuming it to have existed, is no protection, for the reason that the notice, whether given at twelve o’clock or later, was unreasonable and cannot be permitted to absolve them from responsibility.

This subject was considered in the case of Lipman v. The Niagara Ins. Co. (decided herewith, ante, p. 231); and this case, which is in many if not in all respects kindred to that, required no further consideration than is here given- to it.

The judgment should be affirmed, with costs.

Daniels, J., concurs.  