
    Third Department,
    May, 1911.
    Michael T. Smith, Respondent, v. Columbia Insurance Company, Appellant.
    
      Insurance — policy on automobile — evidence.
    
    Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of the county of Albany on the 2d day of May, 1910, upon the verdict of a jury, and from an- order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial.
   Per Curiam:

Whether Soden was defendant’s agent or not, the defendant adopted his act in binding it to insurance in signing as agent of defendant the application of January 19, 1909. There was no express warranty of type or cost of the automobile on the part of the plaintiff, and the answer alleges only misrepresentation and deceit respecting these matters. Such representations in the application the defendant realized could not be true, and so stated, but voluntarily took the risk of issuing a policy for the amount of $2,500 until further information could be obtained. When further information was obtained, the defendant did not offer to surrender the policy because it Had been procured by fraud, but treated •it as a valid one, giving the ten days’ notice of cancellation stipulated in the policy. The fire occurred before that notice expired. It was not error to permit the plaintiff to ask Soden on cross-examination if he did not tell the plaintiff that he was acting for the company. It was part of the conversation had, and was not received for the purpose of showing agency, and the court instructed the jury that it did not prove that fact. The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  