Bini v. . Smith

Haight, J. This action was brought upon a policy of insurance. The defense was based chiefly upon the ground that the policy was issued without the authority of the defendant and without consideration. The trial court found as a fact *122 that the policy was procured and delivered to the plaintiff by one Alden, an insurance broker; that he was the agent of the plaintiff and not of the defendant, and that the premium paid to him was never turned over to the manager of the defendant. The Appellate Division reversed the judgment, both upon the law and upon the facts, and granted a new trial. This court has repeatedly held that, where the Appellate Division reverses upon the facts and grants a new trial, it has no jurisdiction to review the order. It is true that the Appellate Division cannot create a question of fact by declaring that there is one, nor, by assuming to reverse on the facts, reverse a determination that does not involve a question of fact, and it, therefore, becomes our duty to look into the record for the purpose of determining whether there was a question of fact involved in the case. (Otten v. Manh. Ry. Co., 150 N. Y. 395, 401 ; Hirshfeld v. Fitzgerald, 157 N. Y. 166, 176 ; Health Dept. v. Dassori, 159 N. Y. 245, 249.) Upon looking into the record of this case, we find the chief issue to be the question as to whether Alden, the insurance broker who procured the policy, was the agent of the plaintiff or of the defendant. This was clearly a question of fact which this court, under the Constitution, is prohibited from reviewing. It, therefore, follows that the appeal must be dismissed, with costs. All concur. Appeal dismissed.