Fishbeck

This is an action on a policy of insurance issued by defendant to insure a stock of goods of plaintiff. The defense was, that other insurance existed not noted on the policy, and of which defendant had no information. Plaintiff had judgment; defendant moved for a new trial, which was denied, and defendant appealed.

One Taylor, an insurance solicitor, solicited defendant to take insurance on his stock of goods. Plaintiff already had insurance to the amount of $12,500 ; namely, $5,000 in the Fireman’s *425 Fund, $5,000 in the Hamburg-Bremen, and $2,500 in the People’s. Taylor was informed of this insurance. Taylor went to B. B. Swain, agent for defendant and of the Manhattan Insurance Company, and obtained a policy of $2,500 from each of the last named companies. No indorsement of the prior insurance was noted on the policies issued by Swain. The two policies were issued, and Swain received the premiums at the agreed rates. Plaintiff and Swain did not meet in the transaction ; the business was negotiated through Taylor, who received his compensation from Swain by a percentage on the premium paid. The policies were dated January 18th, 1870.

The fire by which the goods were injured…