issue, the exclusion of statements by defendant as to his ownership and his connection with the accident was reversible error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 41874193; Dec. Dig. § 1056.*] Appeal from Municipal Court, Borough of Brooklyn, Sixth District. Action by the Frederick Figge Company against Louis C. Stevenson. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted. Argued October term, 1912, before ASPINALL, CRANE, and PUTNAM, JJ. Albert C. Maerkle, of New York City, for appellant. ASPINALL, J. The negligence in this case is very clear. The only doubt that arises is as to the ownership of the truck causing the damage. The plaintiff's testimony shows that the truck bore the name of "Lewis T. Stevenson, Long Island City." The name was written down by Frederick Figge, president of the plaintiff, at the time of the accident; but the paper memorandum has been lost. The defendant denied all knowledge of the accident, and insisted that the truck doing the damage did not belong to him. The defendant conceded, however, that he was the owner of a number of trucks with the name "L. T. Stevenson" on them, and that on the day of the accident one of these, driven by a man named Milligan, had occasion to make deliveries in the neighborhood of Atlantic avenue, where the accident occurred, and might have driven through that street. [1, 2] This being the state of the testimony, Figge was recalled, and testified that his son had written a letter to Mr. Stevenson, who thereupon called upon him. He was asked if he had a talk with Mr. Stevenson, but the trial judge excluded this line of examination. Whatever the defendant might have said regarding his connection with the accident was, of course, competent in the nature of admissions. The questions put by the plaintiff's counsel regarding this talk with Mr. Stevenson might have been more explicit and to the point, but the exclusion of the testimony regarding any talk probably inclined him to proceed no further. The issue was such a narrow one that we believe the error in the exclusion of this testimony to be of sufficient weight to require a reversal of the judgment. Judgment reversed, and new trial granted, costs to abide the event. CRANE and PUTNAM, JJ., concur. March, 1912.) THOMAS F. MARTIN REALTY CO. v. COOKE et al. (Supreme Court, Appellate Term, Second Department. LANDLORD AND TENANT (§ 223*)—LIABILITY OF TENANT FOr Rent. A stipulation in a lease that, on the tenant's abandonment, the landlord may relet for the account of the tenant, must be given effect; and where there is a reletting, the tenant is entitled to set off the amount For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes collected under the reletting, unless a warrant of dispossess was actually issued prior to the reletting, and after the rent sued for became due, in which case the tenant's liability for rent is unaffected by any reletting. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 885-893; Dec. Dig. § 223.*] Appeal from Municipal Court, Borough of Brooklyn, First District. Action for rent alleged to be due under a written lease by the Thomas F. Martin Realty Company against George Cooke, Sr., and another. From an order denying a new trial on the ground of newly discovered evidence, defendant named appeals. Reversed, and new trial granted. Argued March term, 1912, before GARRETSON, STAPLETON, and KAPPER, JJ. Leon Laski, of New York City, for appellant. PER CURIAM. Appellant by affidavits fairly establishes his claim that he did not know until after the trial that the landlord had rented out the premises to another tenant following defendants' abandonment thereof, and that he received from such other tenant $200 in rent during the balance of the term of the lease. While this may have constituted a surrender by operation of law (Gray v. Kaufman Dairy, 162 N. Y. 388, 56 N. E. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327; Gutman v. Conway, 45 Misc. Rep. 363, 365, 90 N. Y. Supp. 290), the appellant at least is entitled to have effect given to the clause in the lease authorizing the landlord upon the tenant's abandonment to relet the premises for the account of the tenant (Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576). In which of the two classes the case belongs should be determined upon a trial, as a fact. The new trial, to which we deem the defendant entitled, may determine that there was not a surrender; but the right of the appellant to an offset of the amount actually collected from the new tenant by the landlord during the period of letting is clear, unless a warrant of dispossess was actually issued prior to this reletting and after the rent became due. The appellant, so far as concerns the motion for a new trial, seems to be supported in his claim that no warrant was issued at all, in which case he would be entitled to the offset, while, on the other hand, if a warrant was issued, and it followed the due day of the rent, the appellant's liability for the rent would be unaffected, and from a payment of which he could not escape. Berg v. Kaiser, 137 App. Div. 1, 122 N. Y. Supp. 85. Justice will be done by granting a new trial, and the order denying the motion therefor should be reversed, with $10 costs to the appellant to abide the event, and the motion granted, without costs. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes MINCK et al. v. BROOKLYN HEIGHTS R. CO. (Supreme Court, Appellate Term, Second Department. APPEAL AND ERROR (§ 1011*)-FINDINGS-CONCLUSIVENESS. March, 1912.) The Appellate Term must affirm a judgment on conflicting evidence, though at variance with another judgment growing out of the same transaction, rendered by the trial court and affirmed by the Appellate Division. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 39833989; Dec. Dig. § 1011.*] Appeal from Municipal Court, Borough of Brooklyn, Third District. Action by Julius Minck and another against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed. Argued March term, 1912, before GARRETSON, STAPLETON, and KAPPER, 'JJ. Louis Burstein, of Brooklyn, for appellants. George D. Yeomans, of Brooklyn, for respondent. PER CURIAM. Although there has been a judgment rendered, and affirmed by the Appellant Division at variance with the judgment rendered by the trial court here, upon facts growing out of the same. accident, unless we are in a position to require the trial court to reach a different conclusion than it has already reached upon conflicting evidence, this judgment should be affirmed. As it is obvious we have no such power, the judgment must be affirmed, with costs. WALRATH v. HANOVER FIRE INS. CO. (Supreme Court, Appellate Division, Third Department. November 22, 1912.) Appeal from Trial Term, Albany County. Action by Charles M. Walrath against the Hanover Fire Insurance Company. From a judgment for plaintiff and an order denying its motion for new trial, defendant appeals. Affirmed. See, also, 133 N. Y. Supp. 1148. Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS and LYON, JJ. Jones, Townsend & Rudd, of Utica, for appellant. William E. Woollard and Michael D. Reilly, both of Albany, for respondent. PER CURIAM. Judgment and order affirmed, with costs. BETTS, J. (concurring). The case was sent to the jury by the learned trial court on the theory that, "if the proof warrants it, they were at liberty to return a verdict in favor of the plaintiff on the theory of the breach of contract of insurance," in pursuance of For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the agreement to that effect. Under the careful charge of the court, the jury brought in a verdict for the plaintiff for the full amount claimed. As bearing upon the question sent to the jury, the record shows no written revocation of the appointment of George H. Russell, or George H. Russell & Son, as agents of the defendant, though the certificate of appointment of both of them is in the record. A later certificate of appointment of Messrs. Rose & Kiernan as such agents was introduced in evidence and appears in the record; but that does not attempt to revoke the agency of either Russell or Russell & Son. One E. Stanley Jarvis testified that he was a special agent of the defendant, and was such special agent having charge of the agency of the defendant in Albany and vicinity in 1908; that he took up the agency of George H. Russell in 1905, and the authority of George H. Russell & Son was taken up in April, 1907. No authority of Mr. Jarvis to take up agencies, whatever that may mean, was shown, and the record shows that, so far as a written authorization was concerned, the Russells have it, and no written revocation is shown. In that connection it will be noted that the Russells resided in the city of Rensselaer, Rensselaer county, across from Albany, as did Walrath, and that Walrath testified that the Russells had an insurance office in the city of Rensselaer, and also in Albany. Kiernan, of Rose & Kiernan, resided in Albany; but it does not appear where Rose resided. The evidence also shows that the policy presented in evidence issued by the defendant to the plaintiff, and later canceled, had the name of the Russells on it. It also appears that the Russells were able to produce a policy issued by the defendant to take the place of the policy of the plaintiff that had expired. Whether their agency had been revoked or not, all these matters were before the jury to pass upon the question. whether the Russells remained the agents of the defendant at the time the policy was to be renewed-that is, May 15, 1908-was for the jury to pass upon. Also No written notice whatever is brought home to the plaintiff of the revocation, if any existed, of the agency of the Russells for the defendant. On the contrary, the plaintiff had the bill sent by the Russells to him for the insurance policy in question, which bill has never been recalled by the Russells, or by any one, on behalf of the defendant or otherwise. All the alleged defects that the Russells testified they notified plaintiff that an inspector had found in his property existed in the residence, and not in the barn, and the fire loss was in the barn, and not in the residence. The residence did not burn. In Marshall v. Reading Fire Insurance Company, 78 Hun, 83, 29 N. Y. Supp. 334, affirmed in 149 N. Y. 617, 44 N. E. 1125, without opinion, the syllabus says: "Where an insurance company, at the time of the revocation of the power of an existing agency, gave no public notice of the same, and left with the former agent policies in blank, signed by the company, such revocation is not effective as against a person subsequently insured in such company by such agent, in the absence of any proof that such revocation of authority was known to him at the time of the issuance to him of the policy." While here it is not shown that the Russells had any policies of the defendant, still, when desired, they produced a policy of the defendant for the plaintiff, and the plaintiff denies that he knew of any revocation of the authority of Russells to act as agents for the defendant. See, also, Hicks v. Assurance Company, 162 N. Y. 284, 56 N. E. 743, 48 L. R. A. 424. In Manchester v. Guardian Assurance Company, 151 N. Y. 88, 45 N. E. 381, 56 Am. St. Rep. 600, the insured had conveyed his property to another person, and transferred existing insurance upon such real estate to the purchaser. The general agent of the defendant Assurance Company had been notified of the transfer, and requested to go to the bank, where the policy was, and make the necessary indorsement upon it, which the agent agreed to do, but did not do. A loss occurring, it was said: "That an agent of a fire insurance company, who was authorized to negotiate contracts of insurance, and to fill up and deliver policies executed in blank, left with him for that purpose, had authority to make a parol preliminary contract to issue a policy, and that the recovery of the amount agreed to be insured was the proper measure of damages for the breach of such a contract." And, farther, that as it was * "quite probable that the plaintiffs were prevented from procuring other insurance by reason of their reliance upon the agreement of the defendant to make the proper indorsement upon the policy, the case falls within the principle upon which the doctrine of equitable estoppel is founded, and the defendant should be precluded from claiming a forfeiture of the policy on the ground of the absence of such an indorsement." I think the judgment should be affirmed, with costs. HOUGHTON, J. (dissenting). A former judgment, obtained by the plaintiff against this defendant on the theory that a policy of fire insurance had been issued and delivered by the defendant, was reversed by this court (139 App. Div. 407, 124 N. Y. Supp. 54) on the ground that the facts proven did not warrant a recovery. Without any amendment of the complaint before trial, another verdict has been obtained on the theory that there was a breach of an oral contract to issue a policy of insurance. At the outset of the second trial the defendant protested that the complaint was insufficient to warrant a recovery on this theory, and made proper objection to the introduction of evidence tending to establish such a cause of action. The learned trial court held that, notwithstanding the allegations with respect to the issuing of a policy, sufficient facts were pleaded to authorize a recovery upon breach of an oral contract to issue a policy. The material facts in controversy are the same as those appearing on the first trial, and they are stated by me in my former opinion, and it is unnecessary to repeat them. I cannot assent to the proposition that the complaint states facts sufficient to warrant a recovery of damages for breach of an oral contract to issue a policy of insurance. The complaint is clearly based upon an actual policy, which is repeatedly referred to therein. It is alleged that a policy was |