Opinion
December, 1906.
Morris A. Rabinovitch, for appellant.
Emanuel Klein, for respondent.
Plaintiff seeks, upon an alleged oral agreement, to recover from defendant the amount of commissions which he would have earned if certain policies of insurance against fire had gone into effect. He bases his claim of breach of contract upon defendant's refusal to accept the policies; and the measure of damage, as shown by his bill of particulars, is the exact amount of commissions which he insists the company would have paid him if the policies had gone into effect. "An owner who receives a fire insurance policy from an agent and returns it before it was to take effect does not incur any obligation to the agent for commissions." 10 N.Y.S. 797. The policies tendered by plaintiff were rejected, never took effect, and commissions never became due from any source. Substantial damages are difficult of proof in this kind of action. Arndt v. Miller, Daybill Co., 48 Misc. 612. The policies were delivered to defendant November third, but none of them were to take effect according to their terms until after the middle of that month and some of them as late as December. They all contained the standard statutory clause and would lose their force if a fire were to happen on insured premises before they were to take effect. Prospective commissions, liable to be lost to plaintiff without any fault on the part of the defendant, cannot well form a basis for computing damage. A judgment awarding for the breach the full commissions which plaintiff might have received from the insurance company if the premiums had been paid, for the entire period of time covered by the terms of the policies, is contrary to the authorities and cannot be allowed to stand.
GILDERSLEEVE and DAVIS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.