
    Francis H. Ross, Respondent, v. Betsie Rubin, Appellant.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Action by broker to recover insurance premiums paid by Mm — Beal party in interest — Voluntary payment — Payment after suit begun. ¡ i
    In an action by a broker to recover for “ insurance premiums ” on policies on the premises of the defendant, a married woman, alleged to have been placed through her husband and which premiums were alleged to be due to the plaintiff and unpaid, it appeared that the broker was apparently acting for his principals, the companies, that the defendant had sought to repudiate the policies and denied that she ever authorized her husband to procure them from the broker; that neither she nor her husband ever requested him to pay the premiums; that the companies had never assigned to him the title to them, and that he paid them after action begun. Held, that he could not recover.
    That regarding the action as one to recover the premiums, they -must be considered as still remaining the property of the companies; while, if the action were to be deemed one for money paid, it could not be maintained as, in the absence of a request to pay, the payment must be regarded as voluntary, and in addition" was not made until after the action had been commenced.
    Appeal from a judgment of tlie Sixth Municipal Court, borough of Manhattan, in favor of the plaintiff.
    J. L. Weinburg, for appellant.
    Ryan & Richards, for respondent.
   Gildersleeve, J.

The pleadings are oral, except so far as the bill of particulars, filed by plaintiff, sets forth that plaintiff, at the request- of defendant, wrote and delivered to the defendant, about May 11, 1898, three policies of insurance on Ho. 9 Bayard street, and that the premiums thereon, amounting to $204, are due to plaintiff and unpaid. The complaint, as appears by the return, is for insurance premiums; ” while the answer is “ a general denial.”

The plaintiff introduced in evidence an authorization or application for the procurance of the insurance, which is admittedly signed by defendant’s husband. This authorization or application for insurance is partly printed, partly written, and contains many blank spaces. It is as follows, viz.:

May 11th, 1898.
“ The undersigned hereby authorizes S. Amsterdam, insurance broker, to procure an insurance for him of $8,500.00, at 2.40 rate, as follows, three years, on household furniture, as per printed form adopted and used by the Company, on store, furniture, fixtures, tools, and implements in the brick building. * * * All while contained in the brick building occupied as shop, situate K>. 9 Bayard street.
“ Denis Rubin, applicant.
“ B. Rubin.”

The witness Amsterdam swears that the “ B. Rubin,” the name of defendant, was written by defendant’s husband, Denis Rubin. This statement is denied by the husband, who, however, admits having signed his own name, Denis Rubin.

It is admitted that K>. 9 Bayard street belonged to defendant, who kept a grocery store there. The plaintiff procured the policies from three different companies.

The plaintiff and Amsterdam testify that the defendant told the plaintiff’s broker that she wanted some insurance, and that her husband was her agent to attend to the matter; that the husband also represented himself as the agent of his wife, and that, as such, he contracted for the insurance with the said agent of plaintiff; that the insurance policies were procured and delivered to defendant’s husband; and that they never have been cancelled or surrendered by the defendant, but are still in full force and effect; that plaintiff has paid out of his own pocket, on June 8, 1898, the sum of $204, as premiums due on said insurance, and has never been repaid. The defendant and her husband, on the other hand, deny any authority or agency on the part of the husband to act for his wife; and they swear that the policies were returned, or offered to be returned, for cancellation. The wife admits that some time before this time, her husband acted as her agent; and the husband says he sometimes acted as his wife’s agent, and signed her name, at his own risk. His testimony on the subject appears to be somewhat contradictory and hazy.

At the close of plaintiff’s case, defendant made a motion to dismiss the complaint on the grounds, 1st, That plaintiff has not proven that Denis Rubin had any authority to sign Mrs. Rubin’s name; 2d, That plaintiff has failed to make out his case by sufficient evidence.” This motion was denied, and an exception taken. At the end of the entire case, defendant renewed the motion to-dismiss on the grounds: “ 1st, That the contract does not show that there was any relationship of agency between Denis RuMk. and B. Rubin; 2d, That the evidence adduced upon the trial is ncfi sufficient to show that relationship; 3d, That the evidence is insufficient to sustain the complaint.” The motion was again denied, and an exception taken. Upon the conflict of evidence presented, the justice found in favor of the plaintiff, and gave judgment accordingly. From that judgment defendant appealed to this court

Upon the appeal, the defendant urges that if this action is for the premiums, it should have been brought by the insurance companies, as there does not appear to have been any assignment of the claim or claims to plaintiff; and that if, on the other hand, the action is for the money paid out by plaintiff personally on these premiums, this payment was a voluntary one, and, furthermore, it had not been made at the time of the commencement of the action. On either theory, therefore, defendant claims that plaintiff is not entitled to recover.

It appears, in fact, that the summons was issued on May 24th, and made returnable May 31st; that the payment by plaintiff was made on June 8th, and that the trial took place on June 15th. There is no evidence that defendant ever requested plaintiff to make this payment, and the presumption is that no such request was made, inasmuch as the payment was not made until after the commencement of the action. The plaintiff was, apparently, the agent for the insurance companies; and the policies of insurance were contracts between plaintiff’s principals and defendant. There does not appear to have been any employment by defendant of plaintiff. It would appear, therefore, that the party in interest was not the plaintiff, if the action is based on the theory of a breach of contract on the part of defendant in not paying the premiums. The premiums, however, were paid by the plaintiff; but this payment was, apparently, quite voluntary on his part. The evidence fails to disclose any obligation on his part to pay the money, nor any request from defendant, or from her husband, assuming him to be her agent, so to pay the same. The defendant seems to have sought to repudiate the policies of insurance, and if, knowing that fact, and after commencing an action to compel defendant to pay the premiums to the companies, plaintiff voluntarily paid them himself, he cannot recover from defendant the money so paid out by him.

We are of opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekmah, P. J., and Giegkbbich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  