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Unterberg v. Elder

Supreme Court of New York, Appellate Division

March 22, 1912

ISRAEL UNTERBERG, Appellant,
v.
ROBERT H. ELDER, Respondent.

APPEAL by the plaintiff, Israel Unterberg, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of January, 1911.

COUNSEL

Wendell P. Barker, for the appellant.

Michael F. O'Brien, for the respondent.

SCOTT, J.:

This is an action to charge defendant as an underwriter upon a so-called Lloyd's policy of fire insurance issued by Jefferson D. Bremer and Charles E. Ring, doing business under the firm name of Bremer, Fiske & Ring, acting or claiming to

Page 648

act as attorneys in fact for defendant and twenty-nine other underwriters at 'New York and New England Underwriters at Lloyds of New York City.'

Plaintiff has complied with the requirements of the policy in so far as to obtain a judgment against the attorneys, and having failed in obtaining satisfaction of that judgment now sues the individual underwriters for whom the attorneys purported to act. The defense turns upon a single point. The authority of the attorneys to act for the individual underwriters is contained in a power of attorney signed by the several underwriters. The power executed by defendant appoints three persons attorneys for him, to wit, Charles E. Ring, John A. Fiske and J. D. Bremer, whereas, as has been said, the policy upon which suit is brought was executed by only two, to wit, Ring and Bremer. The defendant's contention is that the power was a joint power to these individuals which cannot be executed by less than all, and consequently that he is not liable upon a policy executed by only two of his attorneys. It is undoubtedly the general rule that a power of attorney given to two or more individuals will be presumed to be joint, unless the principal had indicated a different intention. ( Hawley v. Keeler, 53 N.Y. 114.)

The power of attorney in the present case consists (1) of a statement of the parties to the power; (2) of certain preambles describing the nature of the business to be done and the reasons why the subscribers have appointed attorneys in fact; and (3) twenty clauses setting forth the powers, duties and obligations of the parties.

In these twenty clauses, which the Appellate Term (See 72 Misc. 363) describes as the operative clauses of the contract, the attorneys are always spoken of and referred to collectively, and if the contract consisted only of these clauses there would be much ground for the defendant's contention. It is plain, however, that when the contract in its operative clauses speaks of the 'Attorneys' as authorized to do certain things, including the issuance of policies, the reference is to the attorneys mentioned and described in the 1st clause of the contract which specifies and defines the parties to the power. The document, although the particular copy in evidence is

Page 649

signed only by defendant, is drawn as if it was to be signed by all the subscribers. Its 1st clause reads as follows: ' Agreement made and entered into this 7th day of July, 1902, by and between the underwriters or subscribers at the New York and New England Underwriters at Lloyds of New York City, parties of the first part, and Charles E. Ring, John A. Fiske and J. D. Bremer, subscribers, underwriters and attorneys at New York and New England Underwriters at Lloyds of New York City, parties of the second part, and by and between each of the parties of the first part, and by and between each of the parties of the second part.' The significant words in this clause are those which I have italicized, and which appear to be devoid of meaning and significance, unless they be construed to mean that each subscriber creates each attorney his attorney to act as authorized by the whole agreement, thus granting a joint and several power to the three persons named as attorneys. If this be the true meaning of the clause, as we consider that it is, it follows that the powers given in the later clauses of the document to the 'Attorneys' are intended to be given to them jointly and severally, and may be effectually exercised by less than the whole number. This is not a case of controlling clear, operative clauses by an ambiguous recital, but a construction of an entire contract so as to give effect to the apparent intention of the parties. This, as we understand, is in accord with the construction given to the same power of attorney by the Appellate Division in the Second Department. (Keuthen v. Elder, 129 A.D. 921.)

It follows that the determination of the Appellate Term must be reversed, with costs in this court and in the Appellate Term, and the ...


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