OAKES, Circuit Judge:
Any personal injuries lawyer knows that the amount of a defendant’s assets or insurance coverage is generally a factor to be weighed in evaluating a case for settlement. The instant diversity action is one for [304]*304fraud, or its legal equivalent; but it arises from a state court malpractice case that the plaintiffs, a brain-damaged child and his mother,1 settled on the record after trial commenced for $185,000, just under the so-called “policy limit.” Slotkin v. Beth-El Hospital, No. 65-6253 (N.Y.Sup.Ct., Kings County, June 4, 1971) (order approving settlement of March 4, 1971). The Hospital defendant and its primary insurer represented that the policy limit was $200,000 when in fact there was an additional $1 million in excess coverage. Plaintiffs then brought this suit in the United States District Court for the Southern District of New York, Milton Pollack, Judge, under the court’s diversity jurisdiction. The jury found certain of the defendant-appellees liable for misrepresenting the insurance coverage. Those defendant-appellees were Citizens Casualty Co. of New York (Citizens), the Hospital’s primary insurer; Paul Ratner, Citizens’ assistant vice president, who was present at the malpractice trial; Christopher McGrath, Jr., and John McGrath, partners in the firm of McGrath, Cohen & McGrath and nominal trial counsel for the Hospital but actually appearing for the insurers; and George Berkowitz, a Hospital trustee and an attorney. The complaint against the insurance companies that had reinsured Citizens’ coverage were dismissed by Judge Pollack in the federal trial. The jury awarded damages in the amount of $680,000, representing the difference between the actual settlement in the' state action and a likely settlement amount had there been no misrepresentation of the coverage.2
Judge Pollack, however, granted judgment notwithstanding the verdict to appellees. Appellees had argued earlier in the proceedings that, as a matter of law, plaintiffs had waived any claim for fraud by affirming the malpractice settlement after discovering the misrepresentations. Judge Constance Baker Motley had denied appellees’ motion to dismiss the complaint on this ground, holding that plaintiffs were entitled under New York law to retain the benefits of the settlement and nevertheless to proceed with the fraud action. Slotkin v. Brookdale Hospital Center, 357 F.Supp. 705 (S.D.N.Y.1972).
Judge Pollack’s original charge to the jury also stated that as a matter of law plaintiffs had not waived their right to sue for fraud. Nevertheless, subsequent to the verdict he reversed his previous holding and also ruled contrary to Judge Motley. He granted judgment to defendants notwithstanding the verdict on the ground that plaintiffs’ failure to rescind the settlement and retry the case in state court when given the opportunity to do so constituted a waiver of the fraud action.
We reverse this grant of judgment to appellees notwithstanding the verdict except as to appellee Berkowitz. We also reverse the alternative holding that appellees are entitled to a new trial because the jury improperly allocated the damage award after it returned a verdict of liability and in response to a request of the court for clarification of the verdict. Additionally, we reverse the lower court’s finding of insufficient evidence to support the verdict against defendant John McGrath and its [305]*305dismissal of the complaint against the reinsurers of Citizens. Because such a result does not permit a single appropriate judgment our mandate is expressed in the alternative.
I. THE FACTS
A. Introduction
Appellants here are Steven John Slotkin and his mother, Charlotte Slotkin. Mrs. Slotkin, a diabetic, gave birth to Steven at Brookdale Hospital Center, then Beth-El Hospital, on November 16, 1963. Steven sustained brain damage at birth which his doctors diagnosed as congenital cerebral palsy. As a result of the brain damage, he is paralyzed, confined to a wheelchair, and will require constant care for the rest of his life. Plaintiffs claimed, and the jury in the action below subsequently found, that the Hospital’s failure properly to administer insulin to Mrs. Slotkin during the period immediately preceding delivery had caused Steven’s brain damage.
B. The State Court Proceedings
In order to understand the issue of waiver, the principal issue that all appellees raise, it is necessary to detail what happened in the state court proceedings. Appellant Steven and his father, Bert Slotkin, since deceased, commenced the state court action against Beth-El Hospital. Citizens had $200,000 of primary liability insurance coverage but was undergoing liquidation and rehabilitation by the State of New York. Ten companies, here called the reinsurers,3 reinsured $150,000 of this coverage. Subscribing underwriters at Lloyd’s of London underwrote $1 million worth of excess insurance.
On February 22, 1971, at the jury selection, Christopher McGrath, the attorney for Citizens who was representing the defendant Hospital, told Max Toberoff, plaintiffs’ attorney, that the Hospital had only $200,-000 worth of insurance coverage. McGrath also stated that he had not told the Hospital’s own counsel that the case was on trial, and he refused Toberoff’s request that he notify the Hospital’s attorney. Toberoff, concerned about the collectibility of plaintiffs’ likely judgment, then notified the Hospital administrator by telephone, letter, and telegram that the case was on trial and that the Hospital faced possible exposure to liability for a verdict in excess of $1 million. In response to the Administrator’s telephone call, appellee George Berkowitz, an attorney and trustee of the Hospital, appeared at the courthouse on behalf of the Hospital. Berkowitz told Toberoff at that time that the insurance coverage was $200,-000. According to Berkowitz’s testimony in his deposition taken shortly before the trial below, he had learned about the policy limit from Christopher McGrath, John McGrath, also trial counsel for Citizens, and Paul Ratner, assistant vice-president and claims manager of Citizens.
On February 25, 1971, New York State Supreme Court Justice Oliver D. Williams, the trial judge, held a conference for the parties. According to Toberoff’s testimony in the court below, both Berkowitz and Christopher McGrath affirmed to the judge that the total insurance coverage was $200,-000, although as we have noted, Berkowitz stated that the McGraths and Ratner were [306]*306the source of his information.4 Toberoff stated that both he and Justice Williams found it difficult to believe that the Hospital’s coverage was so low. Despite the very low “policy limit” and the plaintiffs’ willingness to settle within the limit, the parties reached no agreement; and the case went to trial.
The state court trial proceeded to plaintiffs’ advantage. Dr. Gerald Bernstein, an internist and assistant professor at Albert Einstein College of Medicine and acknowledged specialist in diabetes, testified that Mrs. Slotkin’s doctor had ordered fractional urine specimens to be examined for sugar and acetone q.i.d. (four times a day); his orders hence required a test before each meal and at bedtime. Based upon the results of these tests, insulin should have been administered as necessary to avoid acetonuria.5 Dr. Nicholas Olninc, a neurosurgeon who participated in a National Institutes of Health study introduced at the trial, corroborated Dr. Bernstein’s testimony. The health study demonstrated the relationship between aeetonuria in diabetic mothers and neuropsychological defects in their children. See note 5 supra. The evidence showed that on the morning of November 14, 1963, two days before Steven’s birth, Mrs. Slotkin had aeetonuria. This condition was short-lived; she was given regular insulin and responded very readily. By that afternoon the condition had cleared up; her 6:00 p. m. test was also negative. However, she was not given the remaining q.i.d. test before bedtime on the 14th. The following morning she did not feel well; her fractional urine test showed high levels of sugar and acetone, indicating the condition of acetonuria of so much concern. Her own physician administered insulin and made the following note in the hospital record: “Acetonuria noted this a. m. Probably due to the fact that patient has not received any insulin for almost 18 hours.” Mrs. Slotkin responded slowly to the insulin, indicating that the aeetonuria was quite severe and that she was in a state of acidosis. These episodes were the only aeetonuria she had had during her pregnancy.
Steven was born on November 16 with symptoms of brain damage; when he was eleven months old and still not sitting up, his parents took him to Dr. Leon Greenspan, director of the Children’s Division at the Institute of Rehabilitation Medicine, also known as the Rusk Institute. Dr. [307]*307Greenspan diagnosed congenital brain damage; at trial he corroborated the testimony of Drs. Bernstein and Olninc that the failure to check Mrs. Slotkin’s urine before bedtime on November 14 and to administer the needed insulin had resulted in maternal acidosis which in turn had caused Steven’s brain damage.
C. The Settlement
On March 1, 1971, just shortly before the close of plaintiffs’ case in the state court and just prior to the time that plaintiffs settled on the basis of the representations of insurance coverage of $200,000, the expert on diabetes for the defense, Dr. Harold Zarowitz, sent appellee Christopher McGrath a letter summarizing their telephone conversation of February 27, 1971. This letter substantiated the negligence of the Hospital and corroborated the opinions of plaintiffs’ doctors,6 The parties held a settlement conference on March 4, 1971, before Justice Williams. At that conference Christopher McGrath again stated bn the record that the total insurance coverage, including reinsurance, was $200,000 and that he knew that the Hospital did not have additional insurance with other companies.7
The parties drafted a stipulation of settlement that was read into the record; the settlement provided in pertinent part:
It is further stipulated and agreed that the settlement of $185,000 is hereby approved by the trial judge and that he is to make the allocation of the said sum of $185,000 after all the facts and affidavits are submitted to him by trial counsel as to the allocation of the $185,000 between the plaintiffs Slotkin as to the loss of services and medical expenses and the balance paid to the plaintiff.
It is further stipulated that the attorney for the defendant represents that the total insurance coverage of the defendant is the sum of $200,000, under a policy with Citizens Casualty, and to the best of his knowledge there are no other policies covering this event.
The settlement in the sum of $185,000 is to be paid without interest, costs or disbursements.
MR. TOBEROFF: So stipulated.
MR. [Christopher] McGRATH: So stipulated.
MR. BERKOWITZ: So stipulated.
D. Uncovering the Misrepresentation
Appellees Christopher McGrath and Berkowitz stipulated that to the best of their knowledge there was only $200,000 worth of coverage. The former, however, had complete access to documents that demonstrated otherwise. In the files of Citizens, there were letters from Robert Gilroy, an attorney with the firm of Mendes & Mount who represented the excess insurer, specifically inquiring about the Slotkin case.8 The file [308]*308with the Gilroy letters, which clearly indicated that there was excess coverage, was in the possession of the McGraths’ firm during the state court trial. Berkowitz, who was a trustee of the Hospital and vice-chairman of the Legal Committee, did not speak with anyone in the Hospital administration or check any of the Hospital records to determine whether they showed any excess insurance coverage; instead, he stated, he had relied solely upon the statements of Christopher and John McGrath, although Christopher McGrath, of course, maintains that Berkowitz told him what the coverage was. See note 4 supra. Ratner, who took over the settlement negotiations on March 4, contends that the McGraths and Berkowitz had told him that the coverage was only $200,000. But two of the Gilroy letters were specifically directed to Ratner’s attention. Indeed, Ratner had briefly spoken with Gilroy regarding the Slotkin case before the trial and saw the letters from Gilroy shortly before the trial.9
A week to ten days after the parties entered into the stipulation on the record, Ratner advised Christopher McGrath, and Christopher McGrath in turn advised Justice Williams and Toberoff, that there was $1 million in excess coverage and that the representations as to insurance coverage had been erroneous.10 At this point Justice Williams had not yet signed an order under N.Y.Civ.Prac. Law § 1207 and Rule 1208 (McKinney)11 allocating the sums paid in [309]*309settlement. Justice Williams held a conference on March 31, 1971. The judge attempted to have the excess insurer participate in new settlement discussions, but it refused to do so because it claimed that Citizens had not notified it that the case was going to trial (although it did know that an action was pending). Attorneys for the excess insurer did state that it would participate if there were a retrial.
Toberoff insisted that it was impossible to retry the case. Mrs. Slotkin, who had testified at trial and whose testimony was important because it contradicted the hospital record in part, had still not recovered completely from a heart attack. Her physician, who examined her shortly after the trial, stated that she should not be asked to testify again. Additionally, all of the plaintiffs’ expert witnesses — Dr. Bernstein, Dr. Greenspan, Dr. Olninc — indicated that they would not testify again. Toberoff contacted a number of other doctors, but they also refused to testify. Moreover, the Slotkins did not have the funds for a new trial. The cost of the plaintiffs’ case had been $6,800, and they had borrowed $3,000 to make partial payment.
Toberoff also rejected the offer to forfeit the plaintiffs’ jury rights and continue the trial before the judge on the original record. He similarly refused the offer of a [310]*310new jury trial that would rely on the record from the original trial because he believed that having his clients’ case put to the jury in the form of a record when the defendants’ case would be put in on live testimony would disadvantage plaintiffs’ case. Therefore, at the insistence of Toberoff and the plaintiffs, Justice Williams on June 4, 1971, signed the “infant’s compromise order,” see note 11 supra, approving the settlement. Toberoff’s intention to sue all parties involved for fraud was well-known at the time.
E. The Federal Court Suit
Plaintiffs initiated the instant diversity action for fraud, but prior to trial they voluntarily discontinued the case against the Hospital; its administrator and deputy administrator; the excess insurer; its attorney, Robert Gilroy, and his law firm, Mendes & Mount. The case went to trial against the other defendants, who were Citizens, the primary insurer; the reinsurers; Ratner; Berkowitz; and the McGraths. At the close of plaintiffs’ case Judge Pollack dismissed the complaint against the reinsurers. The jury found both underlying malpractice on the one hand12 and fraud on the other; it rendered a verdict in the total sum of $680,000, allocating it in accordance with Judge Pollack’s “supplemental instructions” 13 as follows: Citizens, $500,000; Berkowitz, $100,000; Ratner, $60,000; Christo[311]*311pher McGrath, $20,000; and John McGrath, nothing.
Subsequent to the verdict Judge Pollack ruled on a reserved motion and dismissed the complaint against John McGrath.14 He also granted to all appellees judgment notwithstanding the verdict, relying on one proposition and one fact. The proposition was that, because the case concerned a minor, “the settlement stipulation was unenforceable unless it was followed by a judicial order finalizing the arrangement, providing for the distribution of the settlement fund and terminating suit.” Slotkin v. Citizens Casualty Co. of New York, 447 F.Supp. 253, 255-56 (S.D.N.Y.1978). The fact upon which Judge Pollack relied was that plaintiffs had learned of the excess insurance before that final order was made and judgment entered so that their “insistence on proceeding with and thereby obtaining the execution of the stipulation of settlement bars this action.” Id. at 256. Judge Pollack reasoned that “[i]n the instant case, plaintiffs had not significantly changed position to their prejudice before learning the truth.” Id. at 257. He first noted that there was “no impairment of the facts giving rise to claims of malpractice by the hospital”; he then noted that because the plaintiffs had to prove the underlying malpractice even in the fraud action,15 retrying the malpractice case would have been no more burdensome than pursuing the action for fraud. Id. He held that by obtaining a verdict in the present litigation “plaintiffs have proved that such a retrial was indeed practicable.” Id.
[312]*312II. DISCUSSION
A. Judgment Notwithstanding the Verdict
Initially, we note that Judge Pollack had the power to rule as he did on the waiver point, even though Judge Motley (and he) had held otherwise previously. It is well established that “the law of the case” does not constitute a limitation on the court’s power but merely expresses the general practice of refusing to reopen what has been decided. Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-36 (2d Cir.), petition for cert. dismissed per stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956). See also Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912); LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266, 274 (2d Cir.), cert. denied, 382 U.S. 878, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965).
As a matter of law, however, we agree with Judge Motley’s ruling. As she said, it was the settlement stipulation entered into before the plaintiffs knew of the excess coverage that was the contract induced by appellees' misrepresentations; and as a result of the stipulation plaintiffs terminated the state court jury trial without a verdict. 357 F.Supp. at 707. The law of New York is clear that one who has been induced by fraudulent misrepresentation to settle a claim may recover damages without rescinding the settlement. Strong v. Strong, 102 N.Y. 69, 73, 5 N.E. 799, 800 (1886); Byrnes v. National Union Insurance Co., 34 A.D.2d 872, 310 N.Y.S.2d 781 (1970); Inman v. Merchants Mutual Casualty Co., 274 A.D. 320, 323-24, 83 N.Y.S.2d 801, 804 (1948).16
Even if the underlying premises of this New York rule allowing rescission on the one hand or ratification and suit for damages on the other were unsound, we would of course nevertheless be bound by that rule. The premises for the rule, however, are quite sound. If all that will result from a misrepresentation is a new trial, then the party making it has everything to gain and nothing to lose. The plaintiffs would be placed at a disadvantage by a new trial; the defendants would not. If anything, defendants would benefit by having a preview of plaintiffs’ case. As McCormick notes in the case of willful fraud:
[I]f the defendant by willful falsehood has cozened the plaintiff into risking his property upon a bargain, which, upon the information given by- the defendant, would have been profitable, a remedy which merely seeks to place the plaintiff back in the position he was in before seems hardly adequate. The plaintiff might well be given the value of the expected bargain. A willful fraud should cost as much as a broken promise. If the cheat can anticipate that the worst that can happen is that he shall be called upon to pay back his profit upon the trade, he may be encouraged to defraud.17
C. McCormick, Handbook on the Law of Damages § 121, at 453 (1935). Thus the New York rule serves to deter fraud. Moreover, the rule does not present a problem of double recovery. In this case, for example, Judge Pollack appropriately instructed the jury that in fixing damages it should deduct from the “fair settlement value” the $185,000 received under the settlement. See note 2 supra.
Judge Pollack considered that the settlement was “inchoate” until the judicial order finalizing the arrangement was made. He relied heavily on this characterization in determining that defendants’ misrepresentations had not prejudiced plaintiffs. But even if the March 4, 1971, stipulation of [313]*313settlement was technically “inchoate,” 18 it was treated as final at the time; and plaintiffs reasonably relied upon defendants’ representations in agreeing to the settlement and allowing the judge to dismiss the jury. Thus although it is true that plaintiffs could have avoided going through with the settlement, this does not diminish the prejudice that they had already suffered by irrevocably changing their position.
In holding that plaintiffs had waived their right to sue by not rescinding the settlement, Judge Pollack relied upon a series of commercial cases which he cited for the proposition that “[i]f a victim of misrepresentation learns the truth when performance of a contract has just begun, and he could rescind without significant prejudice, . he waives the fraud if he proceeds to execute the agreement.” 447 F.Supp. at 256, citing, e. g., A. G. Concrete Breakers, Inc. v. State, 9 A.D.2d 995, 996, 194 N.Y. S.2d 743, 745 (1959) (alternative ground); Kelly v. Otis Elevator Co., 283 A.D. 363, 368, 128 N.Y.S.2d 39, 43 (1954) (dictum), aff’d mem., 308 N.Y. 805, 125 N.E.2d 864 (1955). This rule prevents a plaintiff from recovering damages for “self inflicted” injury. See, e. g., Thompson v. Libby, 36 Minn. 287, 31 N.W. 52, 53 (1886). But these cases are distinguishable because they all involve an exchange of money or value for goods or services after the defrauded party has learned of the fraud and when he has not incurred any damages at the time that he has the opportunity to rescind.
Involved here, however, is the release or settlement of an underlying personal injury claim where, in contrast to the commercial cases, the plaintiffs had already been injured by the dismissal of the jury before they discovered the fraud. Plaintiffs here never had the opportunity to avoid any injury. Plaintiffs were already injured, and their only choices were to accept the settlement and sue for fraud or to retry the malpractice case with all that retrial involved in terms of obtaining witnesses and the like. Given these choices, their decision to proceed by way of the fraud action was understandable, as we discuss below.
The true measure of damages was as Judge Pollack charged initially: the difference in settlement value before and after discovery of the fraud, note 2 supra. We note that there is no problem here of plaintiffs’ failure to mitigate damages by this suit rather than electing to retry the malpractice action. It is true that on retrial the exposure of appellees would have been less because the excess insurer would have been in the case. Nevertheless, plaintiffs were not obliged to incur the risks that retrial would have presented. At retrial, so far as then appeared, plaintiffs would stand a chance of receiving a verdict smaller than the original settlement amount or possibly losing everything in a verdict for the defendants. This risk was additional prejudice to them if they proceeded by retrial because they had already eliminated this risk from the first trial by settling. Having passed the point in the first trial where they could have received nothing or less than $185,000, they should not be required to face this risk again in a second malpractice trial. The law of damages is clear:
If the effort, risk, sacrifice, or expense which the person wronged must incur in order to avoid or minimize a loss or injury is such that under all the circumstances a reasonable man might well decline to incur it, a failure to do so imposes no disability against recovering full damages.
C. McCormick, supra, § 35.
Of course by hindsight it may appear that the risk of a defendant’s verdict was minimal, but that is by hindsight only. At the time that plaintiffs had to make their election there was a definite possibility that no live medical evidence could be had for a retrial.
We stress again that it was appellees who committed the fraud, that plaintiffs did sig[314]*314nificantly change position by allowing the judge to dismiss the jury before learning the truth, and that obtaining a verdict in the present litigation under more favorable circumstances does not at all show that a retrial in the state court would not have resulted in still further injury to plaintiffs.19 Thus Judge Pollack was in error in granting judgment notwithstanding the verdict on the ground that plaintiffs had not significantly changed their position before learning the truth.
B. The Liability of the Parties
Because we believe that the jury could properly have found, as it did under appropriate instructions, supra note 19, that fraudulent misrepresentations made to plaintiffs amounted to legal fraud, and that they did not waive their right to sue for the injury that they suffered as a result of those representations, we address the remaining principal question on appeal of who was responsible and who is therefore liable.
1. Christopher McGrath
We believe that the jury could properly find that Christopher McGrath’s conduct rendered him liable under New York law as charged. McGrath was in charge of the settlement negotiations until Ratner took over; all the while McGrath’s position of authority heightened the impact of his representations as to the insurance coverage. McGrath stipulated that “to the best of his knowledge” there was only $200,000 worth of coverage in spite of the information in the documents in his possession. See note 8 supra. McGrath’s insistence that the policy limit was $200,000, see note 7 supra, renders him liable under the New York definition of scienter as “a reckless indifference to error,” “a pretense of exact knowledge,” or “[an] assertion of a false material fact ‘susceptible of accurate knowledge’ but stated to be true on the personal knowledge of the representer.” See Burgundy Basin Inn v. Watkins Glen Grand Prix, 51 A.D.2d 140, 379 N.Y.S.2d 873, 879 (1976), and cases cited. This, of course, attunes with the classic formulation of Judge Cardozo in the touchstone case of Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441, 449-50 (1931).20
2. Paul Ratner
Ratner took over the settlement negotiations on March 4; and again, his posi[315]*315tion of authority in and of itself made his misstatements more egregious. Ratner contends that the McGraths and Berkowitz21 told him that the coverage was only $200,000; but again, the documents are evidence against him. See note 9 supra. The letters then in his possession explicitly disclose the excess insurance; and there was ample evidence, to permit the jury to reject any defense of failure of memory or simple mistake on his part, note 10 supra, and, as in the case of Christopher McGrath, to find scienter under Burgundy Basin and Ultra-mares, supra.
3. George Berkowitz
The jury’s finding as to Berkowitz is more troubling. Berkowitz did not speak with anyone in the Hospital administration nor check any of the Hospital records to determine the insurance coverage, instead relying solely upon the statements of Christopher and John McGrath. We could easily hold that Berkowitz was negligent, perhaps even grossly negligent, in so failing to cheek or in so relying; but there is, we think, insufficient evidence to permit a jury to find recklessness or a representation “stated to be true on the personal knowledge of the representer.”
Indeed, we note that plaintiffs in fact did not premise their action against Berkowitz on the theory that he had intentionally or even recklessly misrepresented the amount of the insurance coverage. Both Charlotte Slotkin and Toberoff testified that they did not believe that Berkowitz had lied. Rather, Mrs. Slotkin stated that “he just didn’t know any better about any of the insurance companies”; and Toberoff stated that “it was my impression that George Berkowitz may have been guilty of a fraudulent representation in that he was grossly careless.” Furthermore, plaintiffs do not make a claim against Berkowitz for a representation of absolute knowledge. Their reference to the record discloses, insofar as Berkowitz is concerned, only the testimony on deposition by Berkowitz that he told Toberoff after conversing with the McGraths that he “was informed that there was $200,000 insurance.”
Finally, we note that Berkowitz not only had no motive to conceal the excess insurance; but rather, to protect the Hospital, he had every reason to seek to tap whatever insurance coverage there might have been. His unawareness of the excess insurance is evident in his statement to Justice Williams that because he believed that the Hospital itself would be liable above the $200,000 limit, he wanted the record to reflect bad faith on the part of the insurance carrier if it failed to settle the case within the $200,-000 limit. The district court itself noted the “extraordinarily thin reed on which it is suggested that there may be a claim against” Berkowitz, and we hold that the court did not err in recognizing this lack of evidence in granting Berkowitz’s motion for judgment notwithstanding the verdict.
4. Dismissal of John McGrath
The court should not, however, have dismissed the complaint as to John McGrath.22 Although he may have been only minimally at fault, there was sufficient evidence for the case against him to go to the jury; and the jury found him liable (even though in subsequently apportioning the damages it allocated none to him). As to John McGrath the verdict was [316]*316not against the weight of credible evidence. There was evidence that John McGrath gave the appearance of personal knowledge when he specifically ratified his brother’s misrepresentation: “What Chris told you is true . . . . All the coverage there is on the case is $200,000 . . . . That’s it. How many times do you want to hear it?” Berkowitz stated that John McGrath was one of his sources of information about the insurance coverage. There was evidence that John McGrath participated in the drafting of the March 4 stipulation which contained explicit representations as to the coverage limit. Moreover, the letters from the excess insurer’s counsel were in his firm’s file. We note that on the basis of this evidence, Judge Pollack reversed his earlier ruling granting John McGrath’s motion for dismissal. On the renewed motion at the close of all the evidence, Judge Pollack recognized that it would be best to get the jury’s verdict on the fact questions. The evidence supports the verdict that the jury rendered, and it is in accordance with New York law under Burgundy Basin and Ultramares, supra.
Finally, even though the case was not tried on a partnership theory, as a matter of law John McGrath was liable for his partner’s tort. N.Y. Partnership Law §§ 24, 26 (McKinney); Caplan v. Caplan, 268 N.Y. 445, 448, 198 N.E. 23, 24 (1935); see also Pedersen v. Manitowoc Co., 25 N.Y.2d 412, 419, 306 N.Y.S.2d 903, 909, 255 N.E.2d 146, 150 (1969) (joint venture).
5. Dismissal of the Reinsurers
The reinsurers were closely involved in all the transactions leading up to the settlement. They had written notice of the state court trial, and they had an absolute right to all information concerning any matter affecting their coverage. Moreover, their consent was needed for any settlement within the reinsured range, i. e., over $50,000. There was abundant evidence, including Ratner’s own testimony, that throughout the trial Ratner communicated with each of them either directly or through his subordinate. Ratner told Toberoff that he had to telephone the reinsurers as soon as the settlement talk crossed the $50,000 line. Indeed, Toberoff provided Ratner with a copy of the National Institutes of Health study better to enable Ratner to persuade the reinsurers to settle. Ratner testified that he contacted each of the reinsurers to obtain their final consent to the $185,000 settlement. And according to Toberoff’s testimony in the court below, Berkowitz told him at the time of the settlement negotiations that Ratner was talking to the reinsurers; Christopher McGrath confirmed that Ratner told him that he, Ratner, had obtained the reinsurers’ consent to the settlement.
For the reinsurers to be liable for misrepresentation, plaintiffs needed to prove that Ratner was acting as their agent or representative when he misrepresented the amount of coverage. A crucial point to remember is that although the reinsurers’ consent was required for any settlement above $50,000, they did not have an employee present at the trial. Because a settlement stipulation was agreed upon, one can infer that the reinsurers’ consent to the settlement was obtained through some intermediary, some agent. The reinsurers contend that Ratner’s testimony was inadmissible against them to prove agency and thus that there was a complete absence of probative evidence of an agency relationship.
In dismissing the complaint against the reinsurers, Judge Pollack relied on the rule of law that he paraphrased as “[a]cts and declarations of a person assuming to be the representative of another are not competent to prove the agency.” Compare Restatement (Second) of Agency § 285 (1958). That rule, however, does not deal with testimony by an agent. See id. comment a. As there stated, “[a] person can properly testify as to the facts which it is alleged constitute his authority, and his testimony can be introduced either by or against the alleged principal.” See F. Mechem, Outlines of the Law of Agency § 95 (P. Mechem ed. 1952). See also Steuerwald v. Jackson, 123 A.D. 569, 108 N.Y.S. 41 (1908); Boston Old Colony Insurance Co. v. Trivedi, 93 Misc.2d 566, [317]*317403 N.Y.S.2d 169 (1978). Thus Ratner’s testimony was admissible on the issue of agency. The reinsurers themselves concede in their brief that “[t]he deposition testimony of Mr. Ratner ... is not prohibited by the rule regarding the out of court acts and declarations of a purported agent.” Rather, their argument is that Ratner’s statements do not prove the existence of agency. We agree with plaintiffs that their burden of proof to avoid dismissal of the complaint was not to prove the agency but merely to adduce sufficient evidence to take the issue to the jury. The jury should have been allowed to resolve the fact questions, as is its province.
This is not to say that Ratner’s misrepresentations as to excess coverage were within the scope of his agency. This too is a question of fact that the fact-finder must decide. The rule in this regard is that “[i]f the statement is one which, if true, the agent would be authorized or apparently authorized to make, the principal is subject to liability for it, although deceitfully made.” Restatement (Second) of Agency, supra, § 257, comment a.23 We note, however, that the jury’s verdict indicates a finding that Ratner’s comments were made within the scope of his agency with Citizens. We believe that there is also sufficient evidence for a jury to conclude that if Ratner was acting as agent for the reinsurers, his comments were similarly within the scope of his agency. The evidence could support a finding that Ratner’s agency relationship with Citizens and with the reinsurers was the same; if so we can see no difference in the fact of liability of the two as principals.
We note further on the issue of the sufficiency of the evidence that on the basis of Ratner’s declarations, we must reject the reinsurers’ contention that the Restatement rule prohibiting out of court declarations renders “inadmissible and substantively incompetent” on the issue of agency the testimony of Toberoff, Berkowitz, and Christopher McGrath. Section 285 provides that:
Evidence of a statement by an agent concerning the existence of extent of his authority is not admissible against the principal to prove its existence or extent, unless it appears by other evidence that the making of such statement was within the authority of the agent or, as to persons dealing with the agent, within the apparent authority or other power of the agent.
Thus if the jury finds that Ratner's declarations establish the agency and the scope of his authority as encompassing his statements, then it may properly consider the testimony of others as well. Thus on the basis of all of the testimony, there was sufficient evidence of an agency relationship to send the case against the reinsurers to the jury.
C. Allocation of Damages
Appellees argue that in any event a new trial is called for because of the jury’s allocation of damages. The jury first brought in a verdict of $680,000 “total against all of them.” See note 13 supra. In response to a question by the court, “Has the jury found that each of the defendants is liable for the $680,000?,” the forelady said, “Yes, Your Honor.” At this point, the court raised the spectre of multiple liability against the defendants in the amount of $680,000 each and sent the jury out to determine whether it wanted to allocate the verdict. Id. The jury returned the second time with the allocated verdict as noted above.
Judge Pollack’s subsequent comments and actions amounted to an instruction to the jury to determine contribution rights under Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), something that has no bearing upon the joint and several liability to the plaintiffs of the defendants found liable. Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 [318]*318(1972). In his written opinion, Judge Pollack correctly concluded that although the allocated verdict was in accordance with his instruction, it was erroneous as a matter of law because liability for the whole harm was joint and several. 447 F.Supp. at 257—58.24
Thus the crucial question is whether the subsequent submission to the jury can be treated as void, allowing plaintiffs to reinstate the $680,000 verdict. We find that under Klepper v. Seymour House Corp., 246 N.Y. 85, 98-99, 158 N.E. 29, 34 (1927), the jury properly found a general verdict in accordance with the law; their subsequent action of allocation under direction of the court is surplusage which may be disregarded. See also Dextone Co. v. Building Trades Council, 60 F.2d 47, 49 (2d Cir. 1932) (where jury verdict, which attempted to apportion damages, had found both liability and amount of plaintiff’s loss, form of verdict may be disregarded); Gleich v. Volpe, 32 N.Y.2d 517, 523-24, 346 N.Y.S.2d 806, 811, 300 N.E.2d 148, 151-52 (1953) (trial judge properly disregarded jury’s attempt to apportion damages between defendants and entered judgment against both defendants for full amount awarded plaintiffs). We hold that the $680,000 verdict against Citizens, Ratner, and both McGraths, jointly and severally, may be reinstated.
Because we have also held that the court below should not have dismissed the complaint against the reinsurers, plaintiffs have an option: they may either reinstate the verdict and judgment of $680,000 against Citizens and the three individuals, or they may retry the case ab initio against all appellees except George Berkowitz on both liability and damages. They may not do both. If plaintiffs elect reinstatement of the verdict already rendered, the case will be remanded for a separate trial before Judge Pollack on the cross claims for contribution and apportionment among the appellees (against except George Berkowitz) as per their stipulation, note 24 supra.
Judgment in accordance with opinion.