Blasius v. Hartford Fire Insurance

Clarke, P. J.: The defendant is a foreign corporation authorized to do and doing business in this State. The order for examination provided that the said Hartford Fire Insurance Company appear by its managing agent, Vessel Agency, Inc., and that said Vessel Agency, Inc., appear thereat by Howard Hampton, its secretary and treasurer, William A. Hamilton, its vice-president, and Charles S. Elder, its managing agent, and submit to an examination concerning the matters set forth. It is claimed that the Vessel Agency, Inc., a domestic corporation, is the managing agent of the defendant and, therefore, that it is proper to examine it by its officers as an examination before trial of the defendant. Passing the anomaly of examining the officers of one corporation not a party to the action under the pretext of examining the corporation which is a party to the action, the first question to be determined is whether the Vessel Agency, Inc., is the managing agent of the Hartford Fire Insurance Company. I am satisfied that it is not; it is merely a soliciting agent for the placing of insurance. There are 300 of such agents of the Hartford Fire Insurance Company in this State, 10 of them in the city of New York. Not only is the Vessel Agency, Inc., such soliciting agent of the Hartford Fire [349] Insurance Company but it is also the soliciting agent of six other insurance corporations, foreign and domestic. For the defendant and for these other companies it merely has an authority to procure and effect insurance, employs no sub-agents and has no general authority. It has no general power to pay losses or compromise or settle claims. Within the well-settled rules, it seems to me, there is no warrant for holding that it is the managing agent of the defendant in this State. Further, the purpose of an examination before trial is to obtain evidence to use upon the trial. It appears that the officers of the Vessel Agency, Inc., who are required to be examined did not become such officers until long after the transaction desired to be inquired into and have no personal knowledge thereof. It is obvious, therefore, that they can give no personal testimony of the transactions to be inquired into and, therefore, they can give no testimony which can be used upon the trial. If, therefore, it be ever possible to examine a corporation not a party to the suit under the guise of examining another corporation which is a party to the suit, facts are not presented in this case which would warrant such proceeding. The order appealed from is right and should be affirmed, with ten dollars costs and disbursements to the respondent. Dowling and Page, JJ., concurred; Smith and Shearn, JJ., dissented.