
    YENTES, Respondent, v. FIREMEN’S INS. CO., Appellant.
    (City Court of New York, General Term.
    December, 1901.)
    Action by Max Yentes against the Firemen’s Insurance Company.
    William D. Murray, for appellant.
    A. S. Marcuson. for respondent.
   FITZSIMONS, C. J.

Only one serious question is presented by the appellant, upon which he relies for a reversal of this judgment. It is: “Did the plaintiff’s appraiser, after signing the appraisal agreement, fail and refuse to proceed with the appraisal?” The weight and the preponderance of the evidence, as well as the verdict of the jury, answers that question in the negative; and we concur, after carefully reading the record, in such finding. The evidence clearly shows that the failure to have such appraisal was due entirely to the active and industrious efforts of defendant’s appraisers and its agent, Mr. Gilbert, not to have it. It seems that plaintiff’s representative called several times at the office of Mr. Ritchie, defendant’s appraiser, and usually found him not present. On the occasions when they met him, the evidence proves, both from his words and actions, that he did not honestly intend to make an appraisal. At last plaintiff’s appraiser, upon the urgent request of his client to hurry up and settle this matter, called upon Mr. Gilbert, who accompanied him to Mr. Ritchie's office, and, as usual, found him away. Plaintiff’s appraiser on that occasion asked Mr. Gilbert what he should tell his client. Whereupon Mr. Gilbert replied, “Tell him to go to hell.” Such conduct and language clearly prove that the defendant, acting through its courteous agent. Mr. Gilbert, and its appraiser, did not intend to have an appraisal, but just meant to harass, annoy, and in every way delay plaintiff in having his just dues. Judgment affirmed, with' costs and disbursements. Judgment affirmed, with costs.

GONLAN, J., concurs.  