Warren v. Commercial Casualty Insurance

241 A.D. 913

Opinion

Judgment and order reversed on the law and the facts and new trial granted, with costs to the appellant to abide the event. Memorandum: The finding of the jury that the representatives of the defendant had authority to make the contract on which the judgment is based is contrary to and against the weight of the evidence. The burden rested upon the plaintiff to establish the agency. There was also error in admitting in evidence statements of the representatives of the defendant as proof of the scope of their agency. Thompson, J., votes for reversal also on the ground that there was no contract of settlement entered into between the plaintiff and the representatives of the defendant. All concur for reversal and a new trial except Crosby and Lewis, JJ., who dissent and vote for affirmance.