(182 N.Y.S.)

PER CURIAM. This plaintiff sued the defendant for broker's commissions claimed to have been earned by him in procuring the sale of the defendant's store to one Wiscara.

Plaintiff had introduced Wiscara to the defendant about the 5th of December, 1919. At that time defendant's terms for the sale of the store were $2,000 down payment and $1,500 to be paid by notes or a mortgage. Wiscara had but $1,500 cash, and during the negotiations it seems the plaintiff had agreed to loan Wiscara $500 to make out the down payment asked by the defendant. Wiscara telephoned the plaintiff, asking him in reference to the loan, and plaintiff not only refused to loan the $500, but advised Wiscara not to purchase the store, saying that it was "no good, not worth the price," and also told him that he (plaintiff) had another store which he wanted Wiscara to buy. All negotiations were then declared off by Wiscara. About four weeks afterwards, Wiscara resumed the negotiations with the defendant directly, and finally purchased the property.

The foregoing testimony was not disputed. The sale of the property was not procured through the efforts of the plaintiff, but rather in spite of them, and it would certainly be a peculiar situation if a broker becomes entitled to a commission for a sale of property which he tries his best to prevent.

Judgment reversed, with $30 costs, and complaint dismissed, with

costs.

DURHAM v. STUYVESANT INS. CO. OF THE CITY OF NEW YORK. (Supreme Court, Appellate Term, First Department. June 14, 1920.)

1. Trial ~177—All questions for court, where both parties ask directed verdict.

Both parties asking for a directed verdict, all questions of law and fact are for the court.

2. Sales 202 (2, 3)-Title passes where requirement of payment on de. livery is modified and 30-day draft accepted.

Merchandise was owned by insured, though he did not, on its arrival, pay by sight draft against bill of lading, as required by terms of sale; the goods having at his request been delivered to a warehouseman, and the contract being modified by seller's accepting in payment a 30-day draft. 3. Appeal and error 997 (3)—Finding, on both parties asking directed verdict, held conclusive.

The court's determination of a question of fact, on both parties asking for a directed verdict, is conclusive; there being evidence to sustain it. 4. Insurance 504-Coinsurance clause unauthorized by new standard fire policy.

A coinsurance clause is unauthorized by and inconsistent with the conditions of the new standard form of fire insurance policy provided by Insurance Law, § 121, as added by Laws 1917, c. 440, § 3; the policy, without the clause, providing for payment of a loss in the ratio that the face amount of all insurance bears to the amount of loss, irrespective of value of the property, and a company's liability under such clause being deter mined by ratio of the face amount of total insurance to value of the property.

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5. Appeal and error

1041(3)—Denial of motion to amend harmless, where

amendment would be unavailing.

Denial of motion to amend answer or withdraw a juror for purpose of moving for leave to amend cannot prejudice defendant, where the matter, which it is the avowed purpose to show, could not avail.

Appeal from City Court of New York, Trial Term.

Action by Theodore Durham against the Stuyvesant Insurance Company of the City of New York. From a judgment for plaintiff, on motions by both parties for a directed verdict, defendant appeals. Affirmed.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Prentice & Townsend, of New York City (Robert Kelly Prentice, of New York City, of counsel), for appellant.

Ellison, Ellison & Fraser, of New York City (William B. Ellison and Bruce Ellison, both of New York City, of counsel), for respondent.

FINCH, J. [1] The action was brought upon a policy of fire insurance to recover damages for certain flour claimed to have been covered by said policy. The policy is known as a floating policy, covering merchandise owned by the insured wherever (with certain exceptions) the same may be located. The appellant here seeks to review certain questions of fact, but at the close of the plaintiff's case defendant moved for a directed verdict, and it was then expressly agreed, and in fact insisted upon by defendant, that there were no questions of fact or evidence in support thereof to be passed on, whereupon the plaintiff also moved for a direction of a verdict. As both asked for a directed verdict, all questions of law and fact were therefore to be decided by the court, and these were resolved in favor of the plaintiff. Trimble v. N. Y. C. & H. R., 162 N. Y. 84, 56 N. E. 532, 48 L. R. A. 115; Mullen v. Quinlan, 195 N. Y. 109, 113, 87 N. E. 1078, 24 L. R. A. (N. S.) 511. Only two questions are therefore presented for review: First, whether the plaintiff owned the property in question at the time it was destroyed; and, second, whether the coinsurance clause of the policy was applicable, in which latter event the defendant's liability would be reduced.

[2, 3] It appears that plaintiff purchased flour from Youngblood, Incorporated. Youngblood, Incorporated, procured the flour to be shipped to plaintiff; the terms of sale being that plaintiff as to pay for the flour on its arrival by a sight draft against the bill of lading. When the flour arrived, plaintiff was unable to pay for the same, but wrote Youngblood, requesting that the flour be placed in a certain warehouse for his account and at his expense, and payment would be made in a few days. In conformity with this request Youngblood delivered the bill of lading to the warehouseman, who obtained the flour, and a few days thereafter plaintiff delivered to Youngblood his trade acceptance, dated May 23, 1919, payable 30 days thereafter. While under the original contract plaintiff was not entitled to possession of the flour until the payment of the sight draft, it is clear that said contract was mutually modified, so that the seller, Youngblood, ac

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(182 N.Y.S.)

cepted payment by a 30-day draft, and title thereupon vested in the plaintiff, although claim might be urged that it had vested earlier. Even though this might raise a question of fact, which I believe it does, yet the trial court has resolved this question in favor of the plaintiff, and there is evidence to sustain his finding.

[4] The coinsurance clause contained in the policy was disregarded, apparently upon the ground that it was illegal, and therefore void, upon which theory this court is asked to sustain the judgment in that particular. In 1917 the Legislature, by amendment to section 121 of the Insurance Law (Consol. Laws, c. 28), provided for a new standard form of fire insurance policy, and said amendment also provided

that

"No other or different provision, agreement, condition or clause shall be in any manner made a part of such contract or policy or endorsed thereon or added thereto or delivered therewith, except as follows, to wit: 3. The extent of the contribution to be made under the policy in case of loss or damage. 4. Any other matter necessary clearly to express all the facts and conditions of insurance on any particular risk: Provided, however, that no such agreement or rider shall be inconsistent with or a waiver of any of the conditions or provisions of the standard fire insurance policy hereby established. *

There was in the standard form no provision made for a coinsurance clause, but the defendant contends that the same is authorized under subdivisions 3 and 4, above quoted. The respondent, on the other hand, urges that said clause is inconsistent with the conditions of the standard policy. It is clear that the latter contention is correct, since the policy, without said clause, provides for payment of a loss in the ratio that the face amount of all insurance bears to the amount of the loss irrespective of the value of the property; on the other hand, when a coinsurance clause is read into the policy, the company's liability is determined by the ratio which the face amount of the total insurance carried bears to the value of the property. In other words, generally stated, in the absence of a coinsurance clause, the insured collects his whole loss if that does not exceed his insurance, and his whole insurance if that does not exceed his loss. With a coinsurance clause present, the foregoing rule of recovery is modified, and the recovery reduced, if the insurance and the loss, or both, are below the percentage of value. Richards on Insurance (3d Ed.) § 242. In consequence the language used in subdivisions 3 and 4 cannot be held to allow the inclusion of a coinsurance provision, because inconsistent with the provisions of the standard policy. In addition, the word "contribution," as used in subdivision 3, above quoted, would seem to be only applicable to an apportionment of loss among companies issuing concurrent policies. Richards on Insurance (3d Ed.) §§ 315, 316, pp. 431-433; Farmers' Feed Co. v. Scottish Union Ins. Co., 173 N. Y. 241, 65 N. E. 1105.

Richards, in his work on Insurance, calls attention to the fact that certain states have passed statutes prohibiting the inclusion of a coinsurance clause in a policy, except as the insured may voluntarily accede to it in consideration of a lower premium, and the same author points out that effect should not be given to these clauses when they

are inconsistent with statutory provisions. Richards on Insurance, (3d Ed.) § 342. Moreover, it does not appear that any approval has been given by the superintendent of insurance to the addition of the coinsurance clause in connection with the standard form of policy adopted by the amendment of 1917, even assuming that such approval woud be effective.

[5] While the superintendent apparently did give his approval in connection with the old form, such form was discarded by the Legislature of 1917, when the new form was adopted. The cases cited by the appellant are merely an interpretation of the coinsurance clause, and were decided before the amendment of section 121 in 1917., In consequence, the denial of the defendant's motion to amend its answer, or to withdraw a juror, for the purpose of moving at Special Term for leave to amend, cannot prejudice the defendant, because the avowed purpose of the amendment was to show in defense that the actual value of the property insured was greater than stated by the plaintiff.

It follows that the judgment should be affirmed, with costs.

concur.

FISCHER v. ROMAN BATHS CO.

(Supreme Court, Appellate Term, First Department. June 28, 1920.) Bailment 14 (4)—Turkish bathing establishment bailee of clothes in locker of which bather had key.

Where plaintiff went to defendant's Turkish bathing establishment, and was told to leave his clothing in a locker, which was shown to him by an attendant, who inserted a key in the lock, and plaintiff placed his clothing in the locker, locked it, and put the key, to which a rubber band was attached, on his arm, the bathing establishment was bailee of the clothing, and it was immaterial that the door locked in a peculiar way, namely, that bolts had to be drawn by a handle and then the lock turned; such operation not having been explained to the plaintiff,

Delehanty, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by William From a judgment for jury, plaintiff appeals. Argued June term, WAGNER, JJ.

Fischer against the Roman Baths Company. defendant, after trial by a judge without a Reversed and rendered.

1920, before BIJUR, DELEHANTY, and

Sydney W. Stern, of New York City (William Leonard Berk, of New York City, of counsel), for appellant.

Ferris, Dannenberg & Ansbacher, of New York City (Jacob Ansbacher, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff, during a night of early October, 1919, visited defendant's Turkish bathing establishment to take a bath. No private rooms being available, he was told to leave his clothing in a

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(182 N.Y.S.)

locker, which was shown to him by an attendant, who inserted a key in the lock. Plaintiff disrobed, placed his clothing in the locker, locked it, and put the key, to which a rubber band was attached, on his arm, where it remained all night. The next morning he found the locker open, all his clothes in the adjoining locker, but an overcoat missing, for the loss of which he sues.

There seems to be no ground for assuming that the court disbelieved any of plaintiff's evidence, the accuracy and truth of which was affected in no degree by other evidence, or by his cross-examination. It seems, therefore, to be clear that the learned judge below decided in defendant's favor on the theory, presented by respondent's counsel's brief, that there was no proof of defendant's negligence. The action, however, was not brought in negligence, but against defendant as bailee.

Even without the authority of Bird v. Everard, 4 Misc. Rep. 104, 23 N. Y. Supp. 1008, I should have no doubt that the defendant was a bailee to whom plaintiff had delivered the custody of his clothing. It surely could not have been in plaintiff's custody under the very circumstances of the case. The mere fact that for its own purposes-i. e., to make the personal effects of the customer available to him in the most convenient way, with the least trouble to defendant-a system of lockers had been devised, to which each customer received the key, does not change the relation, which appears to me to be obvious in a case of this kind. Nor can I find any differentiating factor in the suggestion of defendant that the door locked in a peculiar way, namely, that bolts had to be thrown by a handle and then the lock turned. If defendant chose for its own purposes to avail of so unusual a device for the locking of an ordinary door, its operation should have been explained to the plaintiff, so that defendant might be protected to the extent and in the manner which it had elected for the custody of its patrons' goods.

There being no question as to the amount of plaintiff's damage, the judgment should be reversed, with $30 costs, and judgment rendered in favor of plaintiff for $62, with appropriate costs in the court below.

WAGNER, J., concurs.
DELEHANTY, J., dissents.

RICHARDSON v. ARGOS MERCANTILE CORPORATION.

(Supreme Court, Appellate Term, First Department. June 24, 1920.) Principal and agent 123 (1) -Evidence held to prove alleged agent's authority to order advertising work.

In action for advertising work performed for defendant, evidence held to show that defendant's alleged agent, who made contract for defendant, had authority to order the work.

Appeal from Municipal Court, Borough of Manhattan, First District.

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