Opinion
May, 1905.
Fred E. Fischel, for appellant.
Marcus Helfand, for respondents.
We are of the opinion that error was committed in receiving certain evidences of conversation had with Mr. Rooney. There was no proper foundation laid for the reception of these alleged admissions on the part of Rooney nor had it been shown by any evidence whatever that Rooney had either actual or constructive authority to bind the defendant by statements made to or by him. Rooney was but an adjuster for the defendant, and as such did not have the right to waive any of the provisions of the insurance contract. Weed v. London Lancaster Fire Ins. Co., 116 N.Y. 106. The trial court also erred in refusing to permit Rooney to answer the question whether he at any time in any conversation had said to Mr. Loeffelholz or Mr. Emanuel that they need not put in any proof of loss to the company. Both Loeffelholz and Emanuel had testified that Mr. Rooney had told them that they need not put in any proof of loss to the company, and Rooney should have been allowed to deny having had such conversation. The question was not leading. It was also error for the court to allow a witness to refresh his memory by testifying from a memorandum, which memorandum he had neither made nor seen made, and which was not read by the witness at or about the time the transaction was fresh in his (the witness') memory, and which he then knew to be correct. Stephen's Dig. Ev. art. 136.
The appellant concedes in the brief used on this appeal that the respondents are entitled to recover an item of eighteen dollars and sixty-eight cents due to them as a rebate upon a cancellation of the policy of insurance herein.
Judgment is reversed and a new trial ordered, with costs to appellant to abide the event, unless the respondents consent to a reduction of the judgment to eighteen dollars and sixty-eight cents and costs in the court below, in which case the judgment as modified will be affirmed, without costs in this court.
SCOTT and DOWLING, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless respondents consent to a reduction of judgment to eighteen dollars and sixty-eight cents and costs in court below, in which case judgment as modified affirmed, without costs in this court.