Opinion
June 3, 1974
In an action to recover the amount of an alleged settlement of fire insurance claims, defendants appeal from a judgment of the Supreme Court, Suffolk County, entered April 9, 1973, in favor of plaintiff against defendants other than General Adjustment Bureau, Inc., upon a jury verdict. Appeal dismissed insofar as it was taken by defendant General Adjustment Bureau, Inc., without costs. This defendant is not aggrieved. Judgment reversed, on the law, with costs to defendants other than General Adjustment Bureau, Inc., against plaintiff, and complaint dismissed. Plaintiff failed to either prove or allege that the insurance adjuster with whom his agent had dealt possessed the necessary authority to settle plaintiff's claims or to bind the insurance companies that had retained him. The burden of proof to establish such agency rested upon plaintiff and his failure to take cognizance thereof is fatal to his case ( Warren v. Commercial Cas. Ins. Co., 241 App. Div. 913; 4 Couch, Insurance, § 26:330). If we were not dismissing the complaint, we would reverse and grant a new trial, because there was error (1) in placing the burden of proof on defendant as to the claimed settlement and (2) in the admission of evidence of the settlement of the real property claim. Hopkins, Acting P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur