
    Westchester Fire Insurance Company, Appellant, v. Morris Gurian, Respondent.
    Second Department,
    November 16, 1906.
    Evidence — error in excluding evidence as to cancellation o£ insurance policy — principal and agent — when insurer not bound by act of insurance broker. ■
    In an action by an insurer to recover a premium on a policy which was delivered to the insured but subsequently returned by him through an insurance broker, it is error to exclude evidence of the transactions at the time of the return of . the policy tending to show that it was never canceled by the insurer.
    As the broker through whom the policy was returned was not the agent of the insurer, it was not bound by his act in accepting a return of the policy.
    Appeal by the plaintiff, the Westchester Fire Insurance Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered oil- the 7th day of December, 1905., x
    
      William W. Butcher, for the appellant.
    No brief for the respondent.
   Miller, J. :

The appellant urges that the justice of the Municipal Court erred in dismissing the complaint at the close of the plaintiff’s case and in excluding certain testimony offered by the, plaintiff. The action is brought to recover a premium on a policy of fire insnranee which an insurance broker procured the plaintiff to issue. The evidence tends to show that the policy was delivered by said broker to the defendant, who promised to pay therefor; that it was kept by the defendant three months and then returned to said broker, who delivered it to plaintiff. The plaintiff sought to show the transaction at the time of the return of the policy to it, and that in fact the policy was never canceled, but this evidence was excluded.

It cannot be doubted that a promise to pay the premium may be implied from the acceptance and retention of the policy by the defendant. The plaintiff made a prima facie case, unless its acceptance of the policy operated to cancel the contract. The broker was not the agent of the plaintiff (see Northrup v. Piza; 43 App. Div. 284; affd., 167 N. Y. 578 ; MeGrath v. Home Insurance Co., 88 App. Div. 153); therefore, his consent to a return of the policy did not bind the plaintiff, and it is impossible for us to tell, from this record, what the plaintiff did respecting the surrender of the policy and its cancellation, because the evidence upon this subject was .excluded by the court. For this reason the judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Woodward, Hooker ' and Rich, JJ., concurred.

.Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  