William J. Underwood and Carman T. Smith, as Executors of Emory M. Van Tassel, Deceased, Respondents, v. Greenwich Insurance Company, Appellant

William J. Underwood and Carman T. Smith, as Executors of Emory M. Van Tassel, Deceased, Respondents, v. Greenwich Insurance Company, Appellant. Insurance—proof of usage as to a notice terminating liability under a "binder.™ An action was brought upon an insurance binder in the following terms: ‘ ‘ Beecher & Benedict, “ New York, 189 . “ Insure E. M. Van Tassel. “ §10,000 for 12 months, “On building N. E. cor. 13th Ave. & W. 11th St. “N. Y. City. “In store. “Binding this 1 day of Jany. at noon, “(this memo, to be void on delivery of the policy at the office of Beecher & Benedict) “ Company Amount Accepted “ Greenwich §10,000 A. “Renewal “559298 not in force “ WM. ADAMS.” On the trial thereof evidence was given by the secretary of the defendant insurance company to the effect that at the time the binder was issued there was in existence a custom or usage, well known to brokers and insurance companies, with reference to the termination of risks under binders similar to the one in question, which was that, on notifying the broker that the risk was declined all insurance under the binder terminated, and that a notice, one similar to which had been given in the case at bar, was at that time and for a long time prior thereto had been in common use for the purpose of terminating liability under such binders. Held, that such evidence required that the case be submitted to the jury upon the question as to the termination of the insurance effected by the binder, and rendered it improper for the court to direct a verdict in favor of the plaintiff. Appeal by the defendant, the Greenwich Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of May, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s, office on the 22d day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover a sum "of money under an alleged contract of insurance. The following is a copy of the contract sued upon: “BeecHér & Benedict, “ New York, 189 . “ Insure E.. M. Van Tassel, “ $10,000 for 12 months, © - “ On building N. E. cor. 13th Ave.. & W. 11th St. ■' “N. Y. City. “ In store. “Binding this 1 day of Jany. at noon, “ (this memo, to be void on delivery of the policy at the office of Beecher & Benedict) “ Company Amount Accepted Greenwich - $10,000 A- “ Renewal “ 559298 not in force “WM. ADAMS.” • Henry G. Ward, for the appellant. George Richards, for the respondents. [MAJORITY — McLaughlin, J,:] McLaughlin, J,: This action has been tried five, times. On the first trial a verdict was directed for the plaintiff for the amount claimed,, which, oh appeal, was reversed and a. new trial ordered ( Van Tassel v,, Greenwich Ins. Co., 72; Hun, 141);. on the second trial tlie' complaint was dismissed and the judgment thereafter. entered was affirmed (83 Hun, 612), but on appeal to the Court of Appeals it was reversed (151 N. Y. 130); on'the third - trial a verdict was directed for the plaintiff and the judgment thereafter entered was affirmed (28 App. Div. 163), which, on appeal to tlie Court: of Appeals, was also reversed (Underwood v. Greenwich Ins Co.., 161 N. Y. 413); on the fourth trial one question was submitted to the jury, and' that having been found in favor of the plaintiff a verdict was directed for him and this judgment'was reversed (54 App: Div. 386); on the fifth trial a verdict was directed for the plaintiff, and from the judgment thereafter entered the present appeal .is taken. The facts involved in the subject-matter of this 'litigation, as well as the law applicable thereto, and the construction to be given to the contract, have been so fully stated in the several opinions heretofore delivered that it is unnecessary to do more on this appeal than indicate the error made by the learned trial justice in directing a verdict. On the last appeal to this court (54 App. Div. 386), following the decision, as understood by us, of the Court of Appeals, reported in 161 New York, 413, we held that proof was admissible showing custom and usage as to the temporary or permanent character of the contract and the method of terminating liability under it, and on the production of such proof a question of fact was, or would have been presented for the determination of the jury. On the trial which resulted in the judgment from which the present appeal is taken proof of this character was presented, and the learned trial court, therefore, erred in not submitting such questions to the jury. The record shows that one of the defendant’s witnesses, Mr. Stone, testified that at the time the binder was given he was secretary, of the defendant, and that there was then a custom or usage well known between brokers and insurance companies with reference to the termination of risks under binders similar to the one upon which the plaintiff predicated his right to recover, which was that on notifying the broker the risk was declined, all insurance thereunder was terminated; and that a notice similar to the one given, that is, the letter' of January Y, 1891 (defendant’s Exhibit IT), was at that time and for a long time previous had been one in common use for the purpose of terminating liability under such contracts. The defendant requested to go to the jury upon these questions, but the request was denied and an exception duly taken. Under our. former ruling the questions should have been submitted to the jury to determine whether the binder was a temporary arrangement and also the risk and was so understood by both of the parties to the contract. It follows that the judgment must" be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide-event.