accident. The conductor of the train testified that he never knew of mail bags being thrown off south of the waiting room. A trainman who had been employed on the train for two years testified that he had never known of mail bags being thrown off south of the waiting room, and the person who carried the mail between the post office and the train testified that he had never seen mail bags thrown off south of the waiting room before the accident. That it had long been the custom for the postal clerk to throw bags from the car to some place on the platform is testified to by all of the witnesses. The only point of difference among them was as to the particular place on the platform where bags had usually been deposited. The point where the bags were thrown off was undoubtedly dependent upon the place where the train stopped. This evidence is quite sufficient to sustain the finding that the defendant knew or ought to have known of the practice of the postal clerk. The evidence was sufficient to authorize the jury to find that the plaintiff did not contribute to the accident by any negligence of her own in attempting to enter the car.

It is urged that the damages awarded are excessive. This case has been three times tried. On the first trial, in January, 1892, the jury disagreed; on the second trial, in March, 1893, a verdict for $19,000 was rendered; and on the present trial, in May, 1895, a verdict was rendered for $9,083. The testimony in respect to the extent of the plaintiff's injuries, and whether they are likely to be permanent, is voluminous. Physicians testified on both sides. The plaintiff has submitted to a physical examination by the defendant's surgeons. The medical features in the case were gone over on the first and second trials, and every opportunity has been had to develop the extent and character of the injuries complained of, and though the sum awarded seems large, yet we cannot say that it is so large as to justify this court, under the circumstances, in setting aside the verdict on the ground that it is excessive. The court, while instructing the jury, said:

"But, gentlemen, if she took cold going to Albany as the result of the injury which she received, and that was the necessary consequence of such injury, then the defendant is liable for that condition of things."

To this the defendant excepted. Upon a careful examination of the case we fail to find any evidence that her illness was caused, in whole or in part, by taking cold on the journey from North Brookfield to Saratoga. Indeed, we find no evidence that would justify the conclusion that she took cold on that trip. The plaintiff testified that, immediately after entering the car at North Brookfield she had a severe chill, and felt cold, and while at Albany she had a second chill. The night of the accident was chilly. The foregoing is the only evidence from which it was sought to have the jury infer that the plaintiff's illness was caused by taking cold. It is conceded that the plaintiff was injured, and the evidence is ample to justify the conclusion that the injuries were sufficient to produce the chills and subsequent symptoms. There being a known and efficient cause for the chills, subsequent fever, and rise in temperature, the court was not required to instruct the jury

that they might attribute these conditions to a cause not shown to have existed, which, if it had existed, might have produced many or all of the symptoms. The instruction excepted to was quite as favorable to the defendant on this branch of the case as it was entitled to.

The exceptions taken to the admission and exclusion of evidence are unimportant, and require no discussion. The judgment and order should be affirmed, with costs.

Judgment and order affirmed, with costs.

All concur.

(4 App. Div. 516.)

SHANK v. GLENS FALLS INS. CO.

(Supreme Court, Appellate Division, Fourth Department. April, 1896.) INSURANCE-AUTHORITY OF AGENT-CONTRACT TO INSURE.

An insurance agent authorized "to receive proposals for insurance * and to fix rates of premium, to receive moneys, and to countersign, issue, and consent to the transfer of policies of insurance signed by the president and attested by the secretary" of the company, cannot, by virtue thereof, bind the company by an agreement to renew a policy without further application, and keep the same in full force until further notice.

Action by Emily Shank against the Glens Falls Insurance Company. From an order rendered in favor of plaintiff at the Cayuga circuit defendant moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

William E. Hughitt, for plaintiff.
Frank D. Wright, for defendant.

FOLLETT, J. January 25, 1895, this action was begun to recover the value of a dwelling house destroyed by fire, which, it is alleged, the defendant insured. April 2, 1869, Calvin Coburn was appointed an agent for the defendant by a written instrument, of which the following is a copy:

"Glens Falls Insurance Company.

"Be it known that Calvin Coburn, of Union Springs, in the county of Cayuga, and state of New York, is appointed, and by these presents duly constituted, agent of the Glens Falls Insurance Co., of Glens Falls, N. Y., with full power to receive proposals for insurance against loss and damage by fire in Union Springs and vicinity, and to fix rates of premium, to receive moneys, and to countersign, issue, and consent to the transfer of policies of insurance, signed by the president and attested by the secretary of the Glens Falls Insurance Company, subject to such rules and regulations of said company, and to such instructions as may from time to time be given by its officers. In witness whereof, the said Glens Falls Insurance Company have caused the same to be signed by their president and attested by their secretary in Glens Falls, in the state of New York, this second day of April, A. D. 1869. "[L. S.] R. M. Little, President. "C. Newton Locke, Secretary."

Under this appointment Coburn has continued to act as defendant's agent. He testified, "I never received any instructions or

powers excepting in this paper" (referring to the commission). April 12, 1893, Coburn countersigned a New York standard policy, which had previously been signed by defendant's president and secretary, by which the defendant, in consideration of $3, insured from April 12, 1893, to April 12, 1894, against loss or damage by fire, the plaintiff's frame dwelling house to an amount not exceeding $400, and her frame barn to an amount not exceeding $100. The policy contains the following provisions which are pertinent to this litigation:

"In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company. This policy may, by a renewal, be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal, or this policy shall be void. No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached thereto, nor shall any privilege or permission affecting the in surance under this policy exist or be claimed by the insured unless so written or attached. In witness whereof, this company has executed and attested these presents this 12th day of April, 1893, but this policy shall not be valid until countersigned by the duly-authorized agent of the company at Union Springs.

"Union Springs, April 12, 1893.

"A. Coburn, Agent."

J. L. Cunningham, President. "R. A. Little, Secretary.

August 5, 1894,-3 months and 23 days after the expiration of the policy, the dwelling was totally destroyed by fire. It is alleged in the complaint that about April 12, 1893, the plaintiff and defendant entered into an agreement in consideration of the payment of $3 per year, by which the defendant undertook to insure the plaintiff by a policy of insurance in the sum of $400 on her house and in the sum of $100 on her barn, from year to year, and at the same time promised and agreed to renew the policy without further application, and keep the same in full force until further notice. It is also alleged that thereafter the defendant duly issued and delivered to the plaintiff its policy No. 2,425, which purported to be a standard fire insurance policy of the state of New York, by which the defendant insured the plaintiff in the amount aforesaid from April 12, 1893, to April 12, 1894, and that at the expiration of the policy she was ready and willing to renew the same, and that by force of the agreement the same was renewed, and was in full force at the time of the fire. The defendant admits that it issued the policy described, but denies that it agreed to keep the same renewed from year to year, and alleges that due proofs of loss were not served, as provided by the policy. The defendant's agent testified that April 11, 1893, the plaintiff called at his house, and applied for insurance on the property, and that he informed her that he would examine it, determine the amount for which it could be insured, and at what rate. He says that he immediately examined the property, and on the next day (April

12th) called on the plaintiff, told her the amount and rate, and advised her to take a policy for three years, as it would cost only about twice as much as a policy for one year, but that she declined a policy for three years, on the ground that she expected to sell the property. He testified that after this conversation, and on the same day, he issued the policy, reported it to the company, and on the next day (April 13th) delivered it to the plaintiff at her house. The plaintiff testified that she had two conversations with the agent; one before he inspected the property, and the other on the day when he delivered the policy. She does not fix the date of either interview, but says that the last, when the policy was delivered, occurred in the latter part of April or early in May, 1893. Her corroborating witness, who was present when the policy was delivered, says that the interview was in April or May. Upon her cross-examination the plaintiff was uncertain as to the date of the delivery of the policy, and testified that only three or four days intervened between the two interviews described by her. It is not, however, important whether the interview occurred on the day after the date of the policy or several days thereafter. The plaintiff testified:

"He [defendant's agent] came to our house that day, and he said, 'I have been down and looked your property over, and I have brought over the policy;' and he said that he would insure me; and I said to him, 'I can't take it only for one year, but I want it kept yearly,' but I couldn't pay only for one year at each time; and then he said he would take-he said he rather I would take it for three years. I told him I couldn't, on account that I didn't have the means. * * Then I repeated to him that I wanted him to keep it renewed, and he said he would. I repeated it two or three times. Then when he got ready to go away I repeated it again. He said he would, and then I told him I didn't understand business very much, and I always left it to agents to see to it for me. He said 'Yes,' he would see to it. Then I said to him I didn't want it to run out as long as I held it, because I talked of selling it. I didn't want it to run out, and if I should sell it I would notify him that I had sold it. * ** Then I asked him again, I said, 'Now, I shan't have to pay no attention to this,' and he said, 'No;' and I couldn't think of any more, and I thought that ought to be enough. Then I said to him, "Then I won't have to look after this at all?' * * He said, 'No;' that was his business."

A Mrs. Stout was present at this conversation, and corroborated the plaintiff's version of what was said. This is the contract upon which the plaintiff seeks to recover, and this is the only evidence of its existence. The defendant's agent denied that he had any such conversation with the plaintiff, and swore that he never agreed to keep the policy renewed. The court instructed the jury: "The only question which I shall submit for your consideration is, was there a contract made between the plaintiff and the agent of the insurance company at the time the policy was issued, as claimed by the plaintiff, which was, in substance, that the agent of the defendant would renew the insurance policy for two years longer, providing the plaintiff would take an insurance policy on her buildings for one year?"

No question in respect to the value of the property, or in respect to the service or the waiver of the service of due proofs of loss, was submitted or requested to be submitted to the jury, but the court was requested by defendant to charge, as a matter of law,

that the plaintiff had not furnished proofs of loss as required by the policy, which was refused, and an exception taken. The issue of fact submitted to the jury was found for the plaintiff, and a verdict for $409 rendered.

Four questions are presented by the record:

(1) Had Coburn authority to bind the defendant by his oral promise to keep the policy renewed?

(2) Is the evidence sufficient to sustain the finding that Coburn agreed that the defendant would keep the policy renewed?

(3) Is the oral contract void under the statute of frauds, or under the 121st section of the insurance law of this state (chapter 690, Laws 1892), which prescribes that a standard fire insurance policy, the form of which is on file in the office of the secretary of state, shall be issued by insurers of property in this state, and further provides:

"No fire insurance corporation, its officers or agents, shall make, issue or deliver for use, any fire insurance policy or the renewal of any such policy on property in this state, other than such as shall conform in all particulars as to blanks, size of type, context, provisions, agreements and conditions with such printed blank form of contract or policy filed in the office of the secretary of state; and no other or different provision, agreement, condition or clause shall be in any manner made a part of such contract or policy, or indorsed thereon or delivered therewith, except as follows, to wit."

The exceptions which follow have no relation to the questions involved in this case.

(4) Were the proofs of loss furnished sufficient?

A contract of insurance is one thing, and a contract to insure is quite another thing. The former is executed and takes effect immediately, while the latter is executory; and the liabilities arising out of these contracts are not always the same. May, Ins. (3d Ed.) § 45; Thomas, Neg. 683; Bank v. Hand, 80 Hun, 584, 30 N. Y. Supp. 508; Id., 89 Hun, 329, 35 N. Y. Supp. 449. The extent of Coburn's authority is defined by the power of attorney and by the policy, and the uncontradicted evidence is that he had no other or greater powers than those conferred by these instruments. had power to countersign and issue policies of insurance which had been previously signed by the president and secretary of the defendant, but the power is not broad enough to authorize him to bind the defendant by an executory, oral contract to insure property in the future. The policy provides:

He

"No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached thereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

By the express terms of the policy it expired April 12, 1894, and the provision above quoted excludes the idea that an agent may orally contract that policy shall be continued in force beyond the period when by its terms it expires. The terms of the policy do v.40N.y.s.no.1-2