Opinion
June 29, 1939.
Appeal from Supreme Court of New York County.
Raymond D. O'Connell of counsel [ O'Connell Butler, attorneys], for the appellant The Fidelity and Casualty Company of New York.
Fred Flatow of counsel [ Hyman I. Kones with him on the brief; Macpeak, Flatow Abramowitz, attorneys], for the plaintiff, respondent.
Benjamin L. Tell, for the respondent Grandview Dairy, Inc.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, COHN and CALLAHAN, JJ.
The jury were entitled to find that it was solely through plaintiff's efforts that the insurance desired by the defendant Grandview Dairy, Inc., was procured from Fidelity and Casualty Company of New York and that it was only because of the insistence of Grandview Dairy, Inc., that another broker's name was substituted and recognition given to such broker. In these circumstances we are of opinion that plaintiff proved a good cause of action against the insurance carrier, Fidelity and Casualty Company. That defendant could not use the services of plaintiff, independent broker though he might have been, and, after procuring the business through him, remunerate someone not shown to have performed any services.
It was error, however, for the trial justice to dismiss the second cause of action directed against defendant Grandview Dairy, Inc. Plaintiff established that it was the action of that defendant which wrongfully caused the substitution of another broker and deprived him of his commissions. A prima facie case was, therefore, established against Grandview Dairy, Inc.
It follows, therefore, that the judgment in favor of plaintiff against defendant The Fidelity and Casualty Company of New York should be affirmed, with costs to the plaintiff against said defendant; that the judgment, in so far as it dismisses the complaint as against the defendant Grandview Dairy, Inc., should be reversed, and the action severed and a new trial directed on plaintiff's second cause of action against defendant Grandview Dairy, Inc., with costs to the plaintiff to abide the event.
Judgment in favor of plaintiff against the defendant The Fidelity and Casualty Company of New York unanimously affirmed, with costs to the plaintiff against said defendant. Judgment, in so far as it dismisses the complaint as against the defendant Grandview Dairy, Inc., unanimously reversed, the action severed and a new trial ordered on plaintiff's second cause of action against the defendant Grandview Dairy, Inc., with costs to the plaintiff to abide the event.