Majority
p. 129Samuel Weingrad, Respondent, v. Wolf Kletzky, Appellant. (Supreme Court, Appellate Term, December, 1906.)
Headnote
Principal and agent — Mutual rights, duties and liabilities — Compensation of agent — Policies rejected by insured and no premiums paid.A judgment in favor of plaintiff, for the amount of commissions to which he would have been entitled if certain policies of insurance had gone into effect and the premiums had been paid by the insured, where it appears that the policies were rejected, never took effect and no premiums became due thereunder, should be reversed.
Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.
Morris A. Rabinovitch, for appellant.
Emanuel Klein, for respondent.
Plaintiff seeks, upon an alleged oral agreement, to recover^ from defendant the amount of commissions which he would have earned if certain policies of insurance against fire had gone into effect. He bases his claim of breach of contract upon defendant’s refusal to accept the policies; and the measure of damage, as shown by his bill of particulars, is the exact amount of commissions
p. 130
which he insists the company would have paid him if the policies had gone into effect. “An owner who receives a fire insurance policy from an agent and returns it before it was to take effect does not incur any obligation to the agent for commissions.” 10 N. Y. Supp. 797 . The policies tendered by plaintiff were rejected, never took effect, and commissions never became due from any source. Substantial damages are difficult of proof in this kind of action. Arndt v. Miller, Daybill & Co., 48 Misc. Rep. 612 . The policies were delivered to defendant Rovember third, but none of them were to take effect according to their terms until after the middle of that month and some of them as late as December. They all contained the standard statutory clause and would lose their force if a fire were to happen on insured premises before they were to take effect. Prospective commissions, liable to be lost to plaintiff without any fault on the part of the defendant, cannot well form a basis for computing damage. A judgment awarding for the breach the full commissions which plaintiff might have received from the insurance company if the premiums had been paid, for the entire period of time covered by the terms of the policies, is contrary to the authorities and cannot be allowed to stand.
Gildeesi.eeve and Davis, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.