#### Max Emanuel and Jacob Loeffelholz, Respondents, *v.*The Maryland Casualty Company, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Evidence — Admissions by representative — Of insurance adjuster who has no power to waive contract, inadmissible — Error to exclude denial of such admissions if proved — Witness — Refreshing memory — Not by memorandum «witness had neither made, nor seen made, nor read about time of transaction.

Proof of admissions of an insurance adjuster, not having the right to waive any of the provisions of the contract, is inadmissible in an action on the policy; but where the adjuster’s statements have been proved, it is error not to allow him to deny having made them.

It is error to allow a witness to refresh his memory by a memorandum he has neither made, nor seen made, and which was not read by him while the transaction was fresh and when he knew it to be correct.

Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of New York, first district, borough of Manhattan.

Ered E. Eischel, for appellant.

Marcus Helfand, for respondents.

Truax, J.

We are of the opinion that error was committed in receiving certain evidences of conversation had with Mr. Rooney. There was no proper foundation laid for the recep*379tion of these alleged admissions on the part of Rooney nor had it been shown by any evidence whatever that Rooney had either actual or constructive authority to bind the defendant by statements made to or by him. Rooney was but an adjuster for the defendant, and as such did not have the right to waive any of the provisions of the insurance contract. Weed v. London & Lancaster Fire Ins. Co., 116 N. Y. 106. The trial court also erred in refusing to permit Rooney to answer the question whether he at any time in any conversation had said to Mr. Loeffelholz or Mr. Emanuel that they need not put in any proof of loss to the company. Both Loeffelholz and Emanuel had testified that Mr. Rooney had told them that they need not put in any proof of loss to the company, and Rooney should have been allowed to deny having had such conversation. The question was not leading. It was also error for the court to allow a witness to refresh his memory by testifying from a memorandum, which memorandum he had neither made nor seen made, and which was not read by the witness at or about the time the transaction was fresh in his (the witness’) memory, and which he then knew to be correct. Stephen’s Dig. Ev. art. 136.

The appellant concedes in the brief used on this appeal that the respondents are entitled to recover an item of eighteen- dollars and sixty-eight cents due to them as a rebate upon a cancellation of the policy of insurance herein.

Judgment is reversed and a new trial ordered, with costs to appellant to abide the event, unless the respondents consent to a reduction of the judgment to eighteen dollars and sixty-eight cents and costs in the court below, in which case the judgment as modified will be affirmed, without costs in this court.

• Scott and Dowling, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless respondents consent to a reduction of judgment to eighteen dollars and sixty-eight cents and costs in court below, in which case judgment as modified affirmed, without costs in this court.