Arnold v. Farmers' Fire Insurance

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' *62exception 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. ", .