Opinion
May, 1908.
Winter Winter, for appellant.
John F. Joyce, for respondent.
The defendant is an insurance broker and represented to the plaintiff that he had received an order from John P. Kane Company for the issuance of liability insurance policies, and procured the plaintiff to write three policies. The Kane Company refused to accept the policies and pay the premiums. It turned out that the defendant had no authority from the Kane Company to obtain the policies, and they were surrendered and cancelled. The policies were in force for two months; and the plaintiff brought this action to recover from defendant the proportion of premium earned while the policies were in force, to wit: $153.94. Judgment was for the defendant. Upon a previous trial plaintiff obtained judgment for $51.65, upon the assumption, apparently, that the plaintiff was bound by a letter in which it claimed only that sum. The judgment was reversed by this court for the reason that there was proof tending to show that the letter erroneously stated the amount. 52 Misc. 658. It seems plain that the defendant rendered himself liable for the damages suffered by the plaintiff on account of the breach of warranty that he was the agent of the assured. White v. Madison, 26 N.Y. 117. The measure of damage is the amount of premiums that could have been recovered under the policies, had the defendant had authority to bind the Kane Company. As we have seen, that is $153.94. The claim of defendant, that the action cannot be maintained because founded upon an oral promise to pay the debt of another, cannot be sustained. The action is not brought on the promise of the defendant to pay the premium. It is for damages arising from the false representations of the defendant that he was the agent of the assured. The facts are practically undisputed, and it is manifest that there could be no change in the evidence upon another trial.
The judgment must be reversed and judgment directed in favor of the plaintiff and against the defendant for $153.94, with interest from March 21, 1906, together with costs in this court and the court below.
GIEGERICH and GREENBAUM, JJ., concur.
Judgment reversed and judgment directed in favor of plaintiff and against defendant for $153.94, with interest from March 21, 1906, with costs in this court and the court below.