
    Daniel Arff, App’lt, v. The Star Fire Insurance Co.,. Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    
    Insurance (fire) — Brokers — Notice of additional insurance—Sufficiency of.
    M. & Van A. were agents for defendants in Troy, authorized to dcrbusiness for them and to countersign policies. They had also other companies. They had one Strecker in their employment, working for them, as a broker, soliciting insurance on commission for them, and for them, only. Strecker did not take other fire insurance than theirs. He solicited, insurance and brought it to the office. If they approved, they took it. He used a desk in their office. Strecker solicited, from plaintiff, the insurance which the company, through these agents, issued. M. & Van A. had authority to consent to additional insurance. Feld, that nothing: which Strecker did in soliciting, bound M. & Van A. or their companies; that nothing which he did, after a policy had been issued, could bind them; that notice of additional insurance, given to Strecker, was not notice to M. & Van A. or to the defendant. Landon, J., dissenting.
    Appeal by the plaintiff from a judgment of non-suit, entered in the clerk’s office of Rensselaer county, in favor of the defendant and against the plaintiff, dismissing the-plaintiff’s complaint, and for $154.54 costs. This action was-brought to recover on a policy of insurance issued by the defendants. The defense interposed by the answer, and. sought to be established upon the trial, was that additional insurance, to the amount of $600, was obtained by the insured, and also that the property was incumbered to the amount of $250, both in violation of the conditions of the'policy. On the trial there was no question as to the amount of the-loss, which, as adjusted, was $633.60. It is admitted that there was an additional insurance upon the property insured, as mentioned in the defendant’s answer, but it is claimed, on the part of the plaintiff, that the policy was-complied with in respect to the conditions in it as regards additional insurance, by the plaintiff giving notice thereof to one Werner Strecker, a servant and employee of Macdonald & Van Alstyne, the general agents of the defendant. Other facts are sufficiently set out in the opinion.
    
      T. S. Fagan, for app’lt; E. L. Fursman, for resp’t.
   Learned, P. J.

The question in this case is whether there was evidence which should have been submitted to the jury tending to show that one Strecker was such an agent; that notice of additional insurance given to him was notice to Macdonald & Van Alstyne, the undisputed agents of the defendants.

Macdonald & Van Alstyne were agents for defendants in Troy, authorized to do business for them and to countersign the policies. They had also other companies. They had Strecker in their employment, working for them as a broker, soliciting insurance on commission for them and for them only. Strecker did not take other fire insurance than theirs. He solicited insurance and brought it to the office. If they approved, they took it. He used a desk in their office. Strecker solicited from plaintiff the insurance which the company, through these agents, issued. After the policy had been issued plaintiff spoke to Strecker about having another policy, and told him he would like to give this additional insurance to one Fromann. He got another insurance through Fromann and told Strecker he had obtained it; $600 on stock and $500 on furniture.

Macdonald & Van Alstyne had authority to consent to additional insurance.

We are unable to distinguish this case from that of Mellen v. Ham. Fire Ins. Co. (17 N. Y., 609) and Devens v. Mech. and Trad. Ins. Co. (83 id., 168). The only difference is that Strecker occupied a desk in the office of defendants’ agent and acted exclusively in obtaining insurance for them as to fire insurance. But it is not shown that he did anything for them. He solicited; that is, he applied to people desiring, or who might desire, insurance, and urged them to become insured in the companies of which Macdonald & Van Alstyne were agents. But he entered, into no contract himself; and nothing which he did in soliciting, bound Macdonald & Van Alstyne or their companies. Still less would anything bind them which he did after the policies had been issued.

We think there was nothing for the jury.

Judgment affirmed, with costs.

Ingalls, J., concurs.

Landon, J.

(dissenting).—Conceding that a broker who merely solicits insurance risks from the property owners, and procures the company to accept them, is not the agent of the company, and that notice to him of additional insurance is not notice to the company, I nevertheless think that the evidence in this case tended to show that Strecker occupied to Macdonald & Van Alstyne, who were the authorized. agents of the defendant, such a relation, and was so far in their employment, and represented them, that notice to him was given to and received by him in his capacity 'as their representative.

The effect of that evidence should have been passed upon by the jury. It is not clear to my mind that Strecker was any broker at all. He solicited insurance solely in the interest of the firm of Macdonald & Van Alstyne, was in their employment, had a desk in their office, and the measure of his pay depended upon the amount of the business he brought in. He did business in the agents’ office exclusively for them. The plaintiff offered to prove, but was not permitted, that Macdonald & Van Alstyne did a considerable part of their business by the hand and help of their employees. Their firm, so far as the plaintiff and others dealing with it were concerned, consisted of those who, with the consent and under the employment of Macdonald & Van Alstyne, occupied the office and attended to the business which came within the scope of the agency which the defendant had intrusted to them.

I advise reversal.  