MARQUSEE v. HARTFORD FIRE INS. CO.

MARQUSEE v. HARTFORD FIRE INS. CO. (Circuit Court of Appeals, Second Circuit. October 15, 1912.) No. 232. On rehearing. Affirmed. For former opinion, see 198 Fed. 475. Fried & Czaki, of New York City (Frederick M. Czaki. of New York City, of counsel), for plaintiff in error. Ivins, Mason, Wolff & Hoguet, of New York City (Henry F. Wolff, Robert Louis Hoguet, and Randolph W. Childs, all of New York City, of counsel), for defendant in error. Before LACOMBE, WARD, and NOYES, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. In this case the trial judge directed a verdict in favor of the defendant, which the majority of this court held should be reversed, so that the plaintiff, if able to do so, could on a new trial prove that the insured had ratified the unauthorized contract made by McIntosh before the insurer withdrew. ■ This was on the theory that the trial judge had refused to admit such proof; as the briefs of both parties show he certainly would have done. Further examination of the record shows that no such proof was offered, and that, if offered, it could not have been- received, because the parties had stipulated to confine the proof to the agreed statement of facts. When we said that it might be inferred that the insured had made claim on the policy, before the insurer withdrew, we were referring to moral and not to legal evidence. As the record shows no error upon this point, the mandate must be amended, so as to affirm the judgment.