and 121 New York State Reporter fell, and sustained injuries for which he has recovered in this action. He testified that the car came to a stop, and was started with a violent jerk, which caused him to lose his hold upon the strap, and he was thrown down. The learned counsel for the appellant admits that the evidence justified the submission of the case to the jury, but relies upon two exceptions—one to the admission of testimony, and the other to the charge of the court made at the plaintiff's request. We are forced to reverse this judgment because of the exception to the charge relied upon by the defendant. The court, at the request of the defendant, had charged that: "The burden of proof in this action rests upon the plaintiff to establish both the essential elements in his cause of action, to wit, the negligence of the defendant and the absence of any negligence on the part of the plaintiff, and the plaintiff is bound to make more than a balanced case." Not satisfied with this, the plaintiff's counsel requested the court to charge: "If the jury find that the particular car upon which the plaintiff was a passenger was caused to start forward without notice or warning to the plaintiff, from a position of rest, with a sudden and unusual lurch forward, so violent as to cause the plaintiff and other passengers in the car to be thrown in the manner testified to by plaintiff and his witness Minzesheimer; and if the jury further find that the car could have been started, by the exercise of a reasonable degree of skill and care on the part of the motorman controlling the car, without such sudden, violent, and unusual lurch, provided they believe there was such sudden, violent, and unusual lurch at all; and if they should further find that the seats in the car were all occupied, and that plaintiff was standing inside the car, holding onto a strap provided for such purpose, at the time of such lurch, and was solely by reason thereof thrown down and received the injuries that were testified to in this case-then the plaintiff would be entitled to a verdict." The court charged as requested, and the defendant excepted. Where the liability of a defendant is based upon negligence, to establish such liability the jury must find that the injury was caused by the negligence of the defendant, and it is error for the court to charge as a matter of law that, if the facts are as testified to by the plaintiff's witness, the plaintiff is entitled to a verdict. Kellegher v. Forty-Second St. Ry. Co., 171 N. Y. 309, 63 N. E. 1096. The application of the maxim res ipsa loquitur will, under certain circumstances, sustain a finding of negligence, but this is simply an application of the principle that a fact may be proved by circumstantial evidence. Where that maxim is applicable, there must still be a finding of negligence by the jury, based upon competent evidence, to entitle the plaintiff to a verdict; and the question as to whether negligence existed is a question which must be determined by the jury, and not by the court as a matter of law. This rule has been constantly reiterated in this court and in the Court of Appeals. It is quite proper for the court to instruct the jury that, if they find that a certain condition existed, then a question as to whether the defendant was or was not guilty of negligence is presented for their consideration, and a finding that the defendant was guilty of negligence would be sustained. But that is a very different proposition from a statement to the jury that, if they find certain facts, the plaintiff is entitled to a verdict. In such a direction the jury are charged as a matter of law that the facts stated constitute negligence, instead of leaving the question as to whether there was negligence for the jury to determine. The questions for the jury were, did the defendant's employés start the car with a jerk, which threw the plaintiff down and injured him, and, if they did, was such a starting of the car negligence? An instruction to the jury that, if the car started with such a jerk, and it could have been started without the jerk, the plaintiff was, as a matter of law, entitled to a verdict, withdrew from the jury the crucial question which they were required to determine, namely, whether any act of the defendant's employés which was negligent caused the jerk which injured the plaintiff. As was said by Martin, J., in Kellegher v. Forty-Second St., etc., R. R. Co., 171 N. Y. 309, 63 N. E. 1096: "The standard by which the defendant's acts were to be judged was also largely a question of fact, and whether the acts proved came up to or were below that standard was peculiarly a question for the jury." There was evidence on the part of the defendant that the plaintiff was seated in the car before the car started, and that there was no violent jerk, caused by any act of the defendant's motorman, or those engaged in operating the car; and yet the jury were instructed that, if they found that the car started with a jerk, and plaintiff was thrown, as testified to by the plaintiff and Minzesheimer, the plaintiff was entitled to a verdict, without requiring the jury also to find that the starting of the car by the defendant in the manner described was the cause of the accident. Not only must the negligence of the defendant be established, but such negligence must be shown to be the proximate cause of the accident. This charge violated the established rules in relation to what it was necessary for the jury to find to establish a liability of the defendant, both in failing to require the jury to find the defendant guilty of negligence and in permitting a verdict for the plaintiff without a finding that such negligence was the approximate cause of the accident, and that the plaintiff was free from contributory negligence. It follows that the judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All con cur. LEWIS v. GUARDIAN FIRE & LIFE ASSUR. CO., Limited, et al (Supreme Court, Appellate Division, First Department. April 8, 1904.) 1. FIRE INSURANCE-LOSS-RECOVERY BY INSURED-RIGHT OF MORTGAGEE. Where the insured in a fire policy could not recover for a loss, a mortgagee of the property insured could not enforce the provision in the policy stipulating that the loss, if any, should be payable to the mortgagee as his interest might appear. 2. SAME-POLICY-STIPULATIONS AS TO OTHER INSURANCE-WAIVER. Where an agent of an insurance company has full knowledge of other insurance on the property sought to be insured, and a policy is issued, the stipulation that it shall be void if at the time of its issuance the property was insured will be deemed waived by the company. 11. See Insurance, vol. 28, Cent. Dig. § 707. and 121 New York State Reporter 3. SAME-AGENCY-EVIDENCE-QUESTION FOR JURY. On the issue whether a partnership was an agent of an insurance company in procuring certain insurance, it appeared that the policy issued by the company contained the word "Agency," followed by the name of a city and the name of the partnership, which words were also indorsed on the policy. When the application for insurance was made to the partnership, it issued an interim receipt containing the name of the partnership, followed by the word "Agency." A witness testified that he had known the partnership for about 12 years, during which time it had been the manager of the company. A member of the firm testified that at the time of the issuance of the policy he had no relation with the company, and was not its agent. The company's manager testified that neither the firm, nor any member of it, was the company's agent. Held a question for the jury whether the firm was the company's agent. 4. SAME STIPULATION AS TO OTHER INSURANCE-CONSTRUCTION. Where the insured at the time of applying for insurance informed the company's agent that there was a certain amount of insurance on the property, and that additional insurance was desired, and the company issued additional insurance, the continuation of the existing insurance, either by renewals of policies already thereon, or by substituting other policies, was not "other insurance," within the company's policy, stipulating that it should be void if the insured should thereafter procure other insurance. 5. SAME INSURANCE OF PRoperty in Foreign CountrY-ACTION BY RESIDENT -PARTIES. In an action on a policy procured by a domestic corporation from a foreign insurance company authorized to do business in New York on property located in Canada, which stipulates that the loss, if any, shall be payable to the mortgagee as his interest may appear, the assignee of the mortgagee is a necessary party, and, on his refusal to join as plaintiff he may be made a defendant, though he is a resident of Canada. Appeal from Trial Term, New York County. Action by Edward L. Lewis against the Guardian Fire & Life Assurance Company and Charles A. K. MacPherson. From a judgment dismissing the action as to defendant MacPherson, he appeals; and from a judgment in favor of defendant insurance company, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, PATTERSON, and INGRAHAM, JJ. William B. Ellison, for appellant Lewis. Rufus L. Weaver, for appellant MacPherson. MCLAUGHLIN, J. On the 20th of July, 1899, the Owl's Head Hotel Company, a New York corporation, procured from the defendant the Guardian Fire & Life Assurance Company, Limited, a foreign corporation, a policy of fire insurance in and by which it insured certain property located in Canada against loss or damage by fire to the extent of $4,000, with the "loss, if any, payable to John G. Foster, Esq., agent for mortgagee, as his interest may appear." During the term of the policy the property was destroyed by fire, and a loss sustained in excess of that covered by the insurance. The insurance company refused to pay the loss covered by its policy, and thereupon the plaintiff, a resident of the state of New York, as the assignee of the insured, brought this action to recover thereon; making MacPherson, a resident of Canada, who had acquired the interest of the mortgagee referred to in the policy, a party defendant, he having refused to join with the plaintiff in bringing the action. At the trial, after the plaintiff and MacPherson had rested, the complaint, in so far as it related to the latter, was dismissed, upon the ground, as appears from the opinion of the trial justice, that the "court has no jurisdiction over his cause of action, however asserted, nor can it acquire jurisdiction by indirection, or by any device of pleading, practice, or procedure." ception was duly taken to this ruling by both MacPherson and the plaintiff. The trial court, however, refused to dismiss the complaint against the insurance company; holding, as the case then stood, a question of fact was presented for the jury, and that the action could. be continued by the plaintiff to recover the difference between the amount which had been proved to be due MacPherson and the amount of the policy. The action was then continued, and at the close of the whole case a verdict was directed for the insurance company upon the ground that the evidence established a violation by the plaintiff of the terms of the policy, which rendered it void, to which an exception was taken by the plaintiff. Judgment was thereafter entered, from which the plaintiff and MacPherson have appealed. The judgment appealed from, unless erroneous as to the plaintiff, is not as to the appellant MacPherson. In other words, unless the plaintiff had a policy of insurance which he could enforce against the insurance company, then a mortgagee or his assignor could not enforce a provision inserted therein for his benefit; and, if a verdict were properly directed as to the plaintiff, then it necessarily follows the judgment could not have injured MacPherson. The appeal of the plaintiff, therefore, will be first considered. The policy contained a provision that it would be void if at the time it was issued the insured had, or thereafter procured, other insurance upon the property covered by the defendant company's policy, unless otherwise provided by agreement indorsed thereon or added thereto, and it was upon this ground that the verdict was directed. The evidence on the part of the plaintiff bearing upon the overinsurance was to the effect that the respondent's policy of insurance was procured through Paterson & Son, of Montreal, Canada, by Mr. Watkins, general manager of the Owl's Head Hotel Company; that, at the time he applied for it, he informed a member of the firm of Paterson & Son what insurance was then upon the property, and that he desired additional insurance to the amount of $10,000, which it procured $6,000 in the Phoenix Insurance Company of London, and $4,000 in the defendant insurance company. In the policy issued by the respondent, reference was made to the $6,000 insurance in the Phoenix, but not to the other insurance, amounting to $4,500, which was upon the property at the time the application was made and the policy written. The fact that Paterson & Son knew there was $4,500 insurance upon the property at the time Watkins applied for the $10,000 additional insurance was not denied at least, no evidence was offered to contradict plaintiff's evidence on that subject-but it was insisted that such information in no way affected the respondent's. liability, inasmuch as Paterson & Son were not its agents, and had no power to waive any of the provisions of the policy. Of course, if and 121 New York State Reporter Paterson & Son were the agents of the insurance company, I take it no one would seriously question but what they could, having full knowledge of other insurance, waive the provisions of the policy with reference thereto. The company could do it, and what it could do itself it could do through an agent. This rule seems to be well settled. Gray v. Germania Fire Ins. Co., 155 N. Y. 180, 49 N. E. 675; Robbins v. Springfield Fire Ins. Co., 149 N. Y. 477, 44 N. E. 159; Wood v. American Fire Ins. Co., 149 N. Y. 382, 44 N. E. 80, 52 Am. St. Rep. 733; Forward v. Continental Ins. Co., 142 N. Y. 382, 37 N. E. 615, 25 L. R. A. 637; McNally v. Phoenix Ins. Co., 137 N. Y. 389. 33 N. E. 475; Short v. Home Ins. Co., 90 N. Y. 16, 43 Am. Rep. 138; Woodruff v. Imperial Fire Ins. Co., 83 N. Y. 133; Richmond v. Niagara Fire Ins. Co., 79 N. Y. 230. Thus, in the first case cited, the court said: "It is well settled in this state that where an insurance company issues a policy with full knowledge of facts which would render it void in its inception, if its provisions were insisted upon, it will be presumed that it by mistake omitted to express the fact in the policy, waived the provision, or held itself estopped from setting it up, as a contrary inference would impute to it a fraudulent intent to deliver and receive pay for an invalid instrument.” The fact being uncontradicted that Paterson & Son was informed as to the insurance upon the property at the time application was made for the additional $10,000, the crucial question is whether Paterson & Son was the agent of the defendant insurance company. If it was, then the information which it had was the information of the respondent. Robbins v. Springfield Fire Insurance Co., supra; Wood v. American Fire Ins. Co., supra. Bearing upon this question, it appeared from the plaintiff's proof that the policy issued by the respondent contained the words, "Agency, Montreal, Paterson & Son," and indorsed upon it were the words, "Paterson & Son, agent, Montreal Agency." all of which was written in and upon the policy when it was issued by the respondent itself, before it was sent to Paterson & Son to be delivered to the insured. In addition to this, it appeared that, when application was made for the insurance, what is termed an “interim receipt" was issued, which contained the words, "Paterson & Son, Agency;" and the manager of the respondent testified that the agent of the company "issues an interim contract or risk," but "no agent with us issues a policy. All our policies are upon application.' tiff's witness Watkins testified that he had known Paterson & Son 12 or 13 years, during which time they had been managers of the respondOn its part, the defendant company called as a witness a member of the firm of Paterson & Son, who testified that at the time the policy was issued he had no relation with the company, was not its agent, and had never issued any policies for it. It is to be noticed, however, that this witness nowhere stated that the firm of Paterson & Son was not the agent or representative of the respondent when the policy was issued. The respondent's manager, Heaton, however, who was subsequently called, did testify that the firm of Paterson & Son, nor any member of it, was not the agent of the defendant company, and had nothing to do with it. ent. The foregoing is a summary of all the evidence bearing upon the question of agency, and upon this the trial court held, as a matter of |