Gandelman

Plaintiff sues the two defendant insurance companies to recover under fire insurance policies prepared by each of them. The real issues are whether any liability was created under the policies by their preparation without 1he knowledge and consent of the plaintiff, preparatory to a substitution of the policies in place of an existing policy, or by their delivery to the plaintiff after the loss.

*474 After a mistrial both plaintiff and defendants made motions for a summary judgment and the same have been submitted to me for determination. The motions have been submitted under a stipulation of facts, the affidavit of the plaintiff, the affidavit of Edward Oelsner, the transcript of testimony taken at the trial and the exhibits introduced during the trial. Counsel submit their motions on the premise and stipulation that there exists no material fact in dispute or where such conflict exists it is to be considered immaterial.

I feel that the motion of the defendants should be granted and I will therefore present the facts most favorable to the plaintiff. Where any conflict exists it shall be resolved in favor of the plaintiff.

The facts disclose that Edward Oelsner was the agent for…