Johnston & Collins Co. v. Davis — 142 N.Y.S. 475

Majority

p. 475

JOHNSTON & COLLINS CO. v. DAVIS.

(Supreme Court, Appellate Term, First Department.

June 24, 1913.)

Headnote

Insubance (§ 188^[1] )—Action fob Pbemium—Evidence—Sufficiency. •

Evidence held insufficient to sustain a judgment of the Municipal Court dismissing a complaint for the premium due on an accident insurance policy.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 245, 402-407; Dec. Dig. § 188.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Johnston & Collins Company against Erank E. Davis. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Argued June term, 1913, before SEABURY, PAGE, and BI-JUR, JJ-_

p. 476

James F. McNaboe, of New York City (Charles J. Holland, of New York City, of counsel), for appellant.

Herrick, Breckinridge, Carney & Sloane, of New York City (Philip W. Carney, of New York City, of counsel), for respondent.

This judgment should be reversed. The defendant, previous to 1911, for one or more years had carried an accident insurance policy issued by the Travelers’ Insurance Company. The plaintiff is an insurance broker, and in October, 1911, the insurance company’s business was transferred to the office of the plaintiff. A renewal of defendant’s policies was issued in that month and charged to the plaintiff by said company, and Mr. Collins and Mr. Johnston, members of the plaintiff company, went to the Princeton Club and delivered the renewal receipt and policy to the defendant. He accepted the same, and promised to send the plaintiff a check for the amount due thereon of $30. This he never did. Plaintiff paid the amount due, and the policy remained in full force until November, 1912. Bills for the amount were sent to defendant from time to time, which he received, but to which he paid no attention. Both Collins and Johnston testify to the delivery of the renewal receipt and the policy, and the defendant’s promise to pay. The defendant’s denial, if it amounts to one, is weak and evasive. He says that he did not tell them that he wanted the policies renewed, and that he did not promise to send a check. As to the delivery of the renewal receipt, he denies any recollection of having had it. There was no substantial contradiction of the plaintiff’s positive testimony.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.