(90 Hun, 405.)

#### VAN WERT v. ST. PAUL FIRE & MARINE INS. CO.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Appeal—Review—Weight oe Evidence.

In reviewing the direction of a verdict for plaintiff, that view of the evidence will be taken which is most favorable to defendant.

2. Insurance—Action on Policy—Directing Verdict.

In .an action on a fire policy providing for cancellation on five days’ notice, where there is evidence that defendant’s agent, after vainly attempting to collect the premium, took the policy from plaintiff on November (3th, telling her that if the premium was not paid by the last day of the month the policy would be canceled; and that, payment not having been made before that time, the policy was canceled, it is error to direct a verdict for plaintiff.

3. Same—Payment oe Premium.

A transaction between a fire insurance company and its agent, without the knowledge, consent, or subsequent ratification of the assured, whereby the agent is charged with the premium due on the policy, and on its cancellation is credited with the unearned portion thereof, is not a payment of the premium which will inure to the benefit of the assured.

*55Appeal from circuit court, Albany county.

Action by Emma Van Wert against the St. Paul Eire & Marine Insurance Company to recover on a policy of fire insurance. From a judgment entered on a verdict for plaintiff by direction of the com% defendant appeals.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

William D. Murray, for appellant.

P. & C. F. Cantine (Charles F. Cantine, of counsel), for respondent.

HERRICK, J.

This is an appeal by the defendant from a judgment rendered upon the verdict of a jury rendered by direction of the court, in favor of the plaintiff and against the defendant. The action» is upon a policy of fire insurance. In reviewing a direction of the court to a jury to find a verdict upon the evidence in favor of the plaintiff and against the defendant, that view of the evidence should be taken which is most favorable to the defendant. The policy in question was issued to the plaintiff. No premium was paid at the time; no premium was ever paid by the plaintiff; and the contention of the defendant is that such policy was surrendered by the plaintiff to the defendant’s agent through whom the policy was issued, and the same canceled for nonpayment of the premium. That the defendant obtained possession of the policy before the fire is unquestioned. The contention of the plaintiff is that it was not surrendered up to be canceled, but that the same was delivered to the defendant’s agent without her knowing what was to be done with it. The agent, upon the contrary, claims that he called upon her several times to procure payment of the premium, and, not succeeding, requested the return of the policy; and that subsequently he mailed the policy back to the plaintiff, informing her that if the premium was not paid within a reasonable time, the policy would be canceled. That at a later time—on November 6th—he again procured the policy from the plaintiff, and told her that if it was not paid by the last day of the month it would be canceled; and, no payment being made thereon by her before that time, it was canceled. The policy provided that it might be canceled upon five days’ notice. If this story is true,—and under the evidence the jury would have a right to find that it was true,—this, beyond all question, terminated the policy, and I think the defendant had a right to have the question submitted to the jury as to whether the policy had been canceled before the fire.

The other question in the case is this: In making up the accounts between the defendant and the agent of the company who issued the policy in question, the amount of this policy was charged to such agent, and upon its being canceled the unearned portion thereof was credited to such agent. It does not appear that this was done either at the request of or with the knowledge of the plaintiff, for after the fire occurred, and before the commencement of this action, she tendered the full amount of the premium to the defendant. The claim is made that this payment, if it can be called such, by the agent to the company, inured to the benefit of the plaintiff, and was in law a pay*56ment by her, so far as the insurance company was concerned, of the premium. Without citing any authorities upon that question, it seems to me that, even if it should be considered payment by the agent, instead of a mere regulation of the accounts between the company and the agent, it is not one that inures to the benefit of the plaintiff. She did not request it. It does not even appear that she knew that it had been done. So far as the evidence shows, the only communication that was made to her was in asking her to pay the premium, and to inform her that the policy would be canceled if it was not. As a matter of fact she did not pay one dollar, and did not offer to pay the premium until after her property had been destroyed by fire. There was neither prior authority nor subsequent notification. The agent was not her agent, but the agent of the company. She never ratified his act before the fire, because she did not know that it had been done. She did not ratify it after the fire, and before the commencement of this action, but, on the contrary, tendered the amount of the premium, assuming it to be unpaid. It seems to me that the transaction was a mere matter of accounts between the defendant and its agent, of which the plaintiff cannot take advantage.

The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.