#### HICKEY v. HARTFORD FIRE INS. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Insurance—Cancellation of Policy.

A fire insurance policy, left with the company’s agent with the express understanding and for the sole purpose of having another policy issued in its place, is not canceled until a new one is issued. Von Wien v. Insurance Co., 23 N. E. 123, 118 N. Y. 94, and Crown Point Iron Co. v. Aetna Ins. Co., 28 N. E. 653, 127 N. Y. 608, distinguished.

Appeal from circuit court, Tioga county.

Action by Michael Hickey against the Hartford Fire Insurance Company. From a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Martin S. Lynch, for appellant.

Hubbell & McG-uire, for respondent.

PER CURIAM.

The complaint in this action in effect alleged that the defendant, through its agent, who was duly authorized to effect and enter into contracts of insurance for it, in consideration of the sum of $6.50 paid by the plaintiff, made and entered into a *330contract of insurance by the terms of which it contracted and agreed, to insure the plaintiff against loss or damage by fire upon a certain frame barn and contents owned by the plaintiff for the sum of $550. It then alleged that the barn and contents were destroyed by fire, and that the property so destroyed was of a value equal to the insurance; that proofs of loss were furnished the defendant, and that it refused to pay the saíne on the ground that before the fire the contract of insurance was canceled. The defendant, after admitting its incorporation, the authority of its agent, the destruction of the barn and contents by fire, the service upon it of proofs of loss, and that it refused to adjust the same, denied the remaining allegations in the complaint, and, in effect, alleged that the policy it had issued was canceled. On the trial the plaintiff was nonsuited. The court held (1) that the action -was upon a policy which had been canceled, and (2) that the plaintiff could not recover upon the contract of insurance made with the defendant because of the insufficiency of the complaint.

In holding that the policy issued was canceled the court relied upon the cases of Von Wien v. Insurance Co., 118 N. Y. 94, 23 N. E. 123, and Crown Point Iron Co. v. Aetna Ins. Co., 127 N. Y. 608, 28 N. E. 653. We think those cases are not decisive of this, but that they are clearly distinguishable. In this case there was no absolute surrender of the policy. It was left for or sent to the defendant’s-agent with the express understanding and for the sole purpose of having another policy issued in its place which should cover only the property destroyed. The first policy had insured it with property located upon another farm. Upon discovering this, and bringing that fact to the knowledge of the defendant, it agreed, upon the return of the policy issued, to issue a new and separate policy upon the property destroyed. There is nothing in the appeal book which discloses any intent upon the part of the plaintiff, or any understanding by the defendant, that the policy issued was to be surrendered or canceled until a new policy was issued in accordance with the agreement between the parties. We think it is quite manifest that both parties intended that the plaintiff’s property should remain insured under the policy already issued until a new one was written to take its place, and that the surrender of the old and the writing of the new policy were to be simultaneous. Under such circumstances, it could not properly be held that the policy already issued was canceled. By the provisions of the policy it could be canceled by the defendant only by giving five days’ notice, and returning the premium actually paid. That it was canceled by any such action of the company is not claimed or pretended. On the other hand, we think the court was not justified in holding that the plaintiff intended to have this policy canceled, and thus leave his-property uninsured, until another1 was issued in its stead. Moreover, we are inclined to the opinion that the complaint in this ac tion was sufficient to justify proof of a contract to insure the building in question upon the terms agreed upon between the parties, and to-sustain a recovery for a breach of such agreement to the extent of the loss sustained by the plaintiff, under the principle of the cases *331of Ellis v. Insurance Co., 50 N. Y. 402; Angell v. Insurance Co., 59 N. Y. 171; De Grove v. Insurance Co., 61 N. Y. 594; Train v. Insurance Co., 62 N. Y. 598; Hubbell v. Insurance Co., 100 N. Y. 41, 2 N. E. 470; Ruggles v. Insurance Co., 114 N. Y. 415, 21 N. E. 1000; More v. Insurance Co., 130 N. Y. 537, 29 N. E. 757; Forward v. Insurance Co., 142 N. Y. 382, 389, 37 N. E. 615.

A somewhat critical examination of the evidence and the authorities bearing upon the questions involved has led us to the conclusion that the court erred in holding that the policy issued by the defendant was canceled, and that the plaintiff’s complaint was insufficient to justify a recovery upon the contract of insurance made between the plaintiff and the defendant; that the court erred in nonsuiting the plaintiff, and that for that error the judgment should be reversed.

Judgment and order reversed, and a new trial granted, with costs to abide the event.