Opinion
Argued November 18, 1975
Decided December 22, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, FRANK P. DE LUCA, J.
Max Ander and William C. Cain for appellant.
Max J. Gwertzman for respondents.
MEMORANDUM.
The order should be affirmed.
In this action for breach of a contract allegedly entered into on behalf of each of the parties by professional insurance adjusters, the burden of proof to establish that the insurance companies' adjuster had authority to bind his principal to a settlement was on the plaintiff (Dudley v Perkins, 235 N.Y. 448, 455; Warren v Commercial Cas. Ins. Co., 241 App. Div. 913; 21 Appleman, Insurance, § 12338, p 255). Such authority cannot be proved by an agent's own statements or declarations (Hotel Atlantis v Peerless Cas. Co., 285 F.2d 257, 260; Warren v Commercial Cas. Ins. Co., supra; Declarations as to Scope of Agency, Ann., 3 ALR2d 598, 603). Although the jury could have found that there was enough evidence in this case to support a finding that the two adjusters had reached an oral agreement on the terms of a settlement, there was insufficient proof of either apparent or actual authority in the companies' adjuster to do so (Bush v Westchester Fire Ins. Co., 63 N.Y. 531; Hotel Atlantis v Peerless Ins. Co., supra, pp 259-260; 4 Couch Insurance [2d ed], § 26:326; cf. Nichols v Jamestown Mut. Ins. Co., 271 App. Div. 105 9).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed, with costs, in a memorandum.