Wisotzkey v. Hartford Fire Insurance

Spring, J.: The policy of' insurance in this case was issued concurrently with the one involved ¡in the action of the same plaintiff against the Niagara Fire. Insurance- Company, a decision in which case is handed down simultaneously with the present decision. (112 App. Div. 599.) ,The records in the two'cases are largely identical, with, however, one important difference. Murray & Jones were the'insurance agents at Hornellsville to to whom Michael, the owner of the property, applied for insurance. They were unable or unwilling to place all the $15,00.0 of insurance desired in companies represented by them.- They accordingly applied to Mr. Dunning, the general agent of the defendant at Hornellsville, and he thereupon issued the policy in suit, countersigning it as agent. Murray & Jones placed on the outside of the policy “ Murray & Jones, General Insurance, 132 Main Street, Hornellsville, N. Y.,” the same as Upon all the other policies, and delivered them all to Michael, who paid them the premium on the policy and they settled with Dunning, the agen.t of the defendant. Michael never had any communication with Dunning and never employed him to insure his property. His agreement Was with Murray & Jones. The' parol proof shows that they knew that the plaintiff was not the absolute owner of the insured property, but the policy was intended primarily to protect him for loans, advances and indorsements for" the benefit of Michael, the owner; and'to enable the latter to carry on-the lumber business. The referee, upon evidence which justifies the conclusion, has made the following finding of fact: “ That in the year 1903, and for some time prior thereto, there had existed among the insurance offices and agencies in said city of Hornellsville a custom of divide ing insurance in the manner following: When an agent received an application for a line of insurance larger, than he desired or' was able to write he placed a part of it with another agent, obtained the policy or policies so issued, placed them with the policies issued by himself or the companies he represented directly on the same property, delivered all the policies to the insured,-collected the whole premium, and settled with the agent issuing the policy or policies so applied for. That under this 'custom the insured had no conn munication with agent writing and issuing the policy so applied for [598] by the other agent, and tlio insured did not know him in the transaction. That the defendant herein, the Hartford Fire Insurance Company,, had notice and knowledge"of said custom.” The policy contains this .clause: “In any «matter relating to this insurance no person, unless duly authorized, in writing, shall be deémed the ágént of this company.” We think Murray & Jones were not the agents of the defendant, but in effecting this insurance were .insurance brokers, and their knowledge of the real interest of the plaintiff in the insured property cannot, be deemed information binding the defendant. (Northrup v. Piza, 43 App. Div. 284; affd., 167 N. Y. 578 ; McGrath v. Home Insurance Co., 88 App. Div. 153.) The prevalence of the custom for the mutual accommodation' of the various agencies, in Hornellsville does not alter the principle applied in the cases cited. The custom or practice was for the convenience of the agents, and did not constitute each one of them á general agent of the defendant. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred, except McLennax, P. J., who dissented in opinion.