Harriet Arnold, Respondent, v. Farmers' Fire Insurance Association of the Towns of Greenville and Durham in the County of Greene, and Westerlo and Rensselaerville in the County of Albany, in the State of New York, Appellant

Harriet Arnold, Respondent, v. Farmers’ Fire Insurance Association of the Towns of Greenville and Durham in the County of Greene, and Westerlo and Rensselaerville in the County of Albany, in the State of New York, Appellant. Third Department, November 14, 1906. Evidence,— action to reform insurance policy — res inter alios acta. In an action to reform a fire insurance policy alleged tó have been made out by defendant’s agent in the name of the plaintiff’s husband with knowledge that ' the real estate covered belonged to the plaintiff, wheh the knowledge of the agent is in issue, it is reversible error to admit evidence of a similar mistake ' made by the agent in drawing a policy for another person, Appeal by the defendant,' the Farmers’ Fire Insurance Association; etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 22d day of January, 1906, upon the decision of the court rendered after a trial at the Albany Trial Term', certain' questions of fact having been submitted to the jury. The action is brought to reform a policy of insurance issued, upon property belonging to the plaintiff, and for damages for the burning of said property. The policy was issued in the name of plaintiff’s husband upon his application. The ground upon which it is sought to have the policy reformed is that the insurance agent was informed at the time of the giving of the policy that the property belonged to the plaintiff, and that the policy was written in the name of the husband either through inadvertence or fraud upon his part. Upon a fair charge by the court, the jury has determined that the plaintiff’s husband stated to the agent of the defendant, when applying for insurance, that his wife, this plaintiff, was the owner of the real estate. The Special Term adopted this finding and directed judgment for the plaintiff. From the judgment thus entered this appeal is taken. George L. Rifenburgh [J. Newton Fiero of counsel], for the appellant. Amasa J. Parker, Jr., for the respondent. [MAJORITY — Smith, J.:] Smith, J.: Plaintiff’s principal contention upon the trial was that the policy in question was made out by Stevens, defendant’s agent, in the name of plaintiff’s husband, with full knowledge that the personal property included therein belonged to the husband and the real estate to plaintiff. Knowledge of this fact was denied under oath by the defendant’s agent. To prove her case, plaintiff produced a witness, Warner, who swore that he himself made application to this same agent for a policy of insúrance upon some real estate and personal property, and after having informed the agent that the real estate belonged to his wife and the personal property to himself the policy was made out in the name of his wife alone. This evidence was objected to on the part of the defendant. The objection was overruled and exception was taken to the ruling of the court. This' exception seems to us fatal tto this. judgment. The plaintiff was required to establish by clear and convincing proof that she1 was entitled to tliis reformation by reason of the fact that the policy was made out by the agent in her husband’s name with full'knowledge of the fact that she herself was the owner. Upon this question the fact that the agent had made another, mistake with another policy was neither competent nor material to the issue. (Lichtenhein v. Fisher, 6 App. Div. 385 ; Shaff v. Schlachetzky, 62 id. 459; Bonynge v. Field, 81 N. Y. 159.) It cannot be held that" this error was harmless. From it the plaintiff undoubtedly argued to the jury that .an agent who would makfe one mistake would, make another. The receipt thereof must have had an unwarranted influence upon their conclusion none too well supported by the evidence in view of the requirement that the evidencé, in Order to authorize a reformation, must be clear and convincing. Other questions are raised by the appellant which it is not necessary here to consider. The judgment should be reversed and a new. trial granted, with costs to appellant to abide the event. All concurred. - Judgment reversed and new trial granted, with costs to appellant to abide event. ", .