Beneke v. Palazzi

256 A.D. 946, 10 N.Y.S.2d 163, 1939 N.Y. App. Div. LEXIS 5582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1939
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial ordered, with costs to appellants to abide the event. On the facts presented the plaintiffs were entitled to recover for they had done all things under their contract required by them, to be done, viz., to assist and advise in adjusting defendants’ fire loss. It was not essential that plaintiffs actually procure a settlement, provided they did everything reasonably within their power in assisting and advising in the adjustment of the loss. Plaintiffs should have been permitted to show the offer of settlement of $6,500 and that they communicated it to defendants. Counsel’s remark in summation with respect to this offer was improper, but plaintiffs should not be made to suffer because of this remark in a case where the facts indicated they should recover. The court erred in charging the jury that plaintiffs, in order to recover, must show that they had procured an offer of settlement of $6,500 and gave notice thereof to defendants. Although no exception was taken to the charge, the interests of substantial justice require that there should be a new trial. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.