APPEAL by the plaintiff, the Hammond Packing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of January, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.
Wendell P. Barker, for the appellant.
Mortimer M. Menken, for the respondent.
INGRAHAM, P. J.:
This action was brought against the defendant as general manager and authorized attorney of certain individual underwriters doing business as the Isthmus Lloyds of the city of New York. The complaint alleges that the defendant and one Patterson were general managers of and duly authorized attorneys for the individual underwriters named; that on or about the 28th of May, 1903, said Patterson and Howey, acting as the agents and attorneys in fact of said underwriters, entered into a contract in writing whereby the said Patterson and Howey, as attorneys in fact of the said underwriters, insured certain described property of the plaintiff for the term of one year from the 30th day of June, 1903, to the 30th day of June, 1904, against all direct loss or damage by fire to an amount not exceeding $2,500. A copy of this policy of insurance was annexed to the complaint; that the premium mentioned in the policy was duly paid to said Patterson and Howey as attorneys in fact and agents for the said underwriters, and
that on or about the 5th day of July, 1903, the property insured was damaged by fire and plaintiff suffered a loss of nearly $300,000, which was the actual value of the property destroyed; that the plaintiff at the time of the fire held policies of insurance covering the property destroyed, amounting to $248,816.42. The loss and damage by reason of the fire was duly appraised and apportioned on the companies insuring the said property, and that the proportionate share of the said loss charged to the agents and attorneys in fact of the underwriters was the sum of $2,500; that notice of said fire was immediately given by the plaintiff to the attorneys and agents as aforesaid within the period limited by the said policies of insurance and proofs of loss filed with the said attorneys for the sum of $2,500, wherefore the plaintiff demanded judgment for that amount. The said policy annexed to the complaint was signed by 'W. J. Howey as attorney.' The answer denies all the material allegations of the complaint, except the allegation that Patterson and Howey were the general managers of and duly authorized agents for the named underwriters, and that proofs of loss were duly received by the said Patterson and Howey.
On the trial the general manager of the plaintiff was called as a witness, and testified as to the ownership of the property insured, and further, that at the time the fire was reported the witness went to St. Joseph, in the State of Missouri, where the property was located, and conferred with Mr. Patterson or Mr. Howey, the attorneys for these underwriters, in regard to the settlement of the loss under the policy. The witness then produced a paper which he testified was executed in his presence on October 4, 1904, by Mr. J. W. Patterson, whom he saw sign the same. That was then offered in evidence and objected to upon the ground that it was not pleaded and not binding upon the defendant in this action, and not shown to have been executed by the defendant's authority. That objection was sustained to which the plaintiff excepted. The plaintiff thereupon rested and the court dismissed the complaint.
The instrument that was thus offered in evidence was as follows: 'It is hereby agreed that the claims of the Hammond Packing Company and Omaha Packing Company, for loss by fire, under the following policies of the New York Fire Lloyds,
Isthmus Lloyds of the City of New York, Union Underwriters and Lloyds Underwriters Agency, viz., Hammond Packing Company'--and then follows a list of the names of those various underwriters, the number of the policy and the amount of the claim--'are hereby adjusted at One hundred per cent (100%) of the amount of said claims, subject to the following conditions of payment: * * * Five per cent (5%) of Sixty per cent (60%) of the face of said claims thirty days from date; Ten per cent (10%) of Sixty per cent (60%) of the face of said claims sixty days from date; Ten per cent (10%) of Sixty per cent (60%) of the face of said claims ninety days from date. Seventy-five per cent (75%) of sixty per cent (60%) of the face of said claims upon final liquidation (but not later than three years from the date hereof), of all outstanding claims brought under policies of the New York Fire Lloyds, Isthmus Lloyds and Union Underwriters issued prior to January 1st, 1904.' It was further agreed that the balance of forty per cent of the face of said claims as thereby adjusted should be payable only out of one-third of such net earnings as may be realized by the attorneys for the underwriters of said policies from the operation as managers of a proposed wholesale and retail butchers' inter-insurance association, which said attorneys contemplate to organize with the co-operation of the assured under said policies. This agreement was signed by the various underwriters by J. W. Patterson, attorney, and by the plaintiff. With the exception of the issuance of the policy and the submission of the proofs of loss, which were admitted by the answer, there was no fact proved upon the trial which was essential to entitle the plaintiff to recover. There was no proof that there was a fire; no proof of the plaintiff's loss; and no proof of the amount of insurance on the property. All of these facts were denied by the answer. The action ...