Unterberg v. Elder

Bijur, J. This action is brought to recover a loss on a policy of insurance alleged to have been issued by defendant in pursuance of authority — a power of attorney — given by defendant. The instrument provided that the underwriters, of whom defendant was one, should be bound by a judgment rendered in an action against the attorneys, whom it required to be first sued before the underwriters could be held. The power of attorney appointed three persons, King, Fisk and Bremer, as attorneys. The action, the judgment-roll of which was introduced in evidence, was brought against Bremer and Fisk alone, it appearing that the former firm of attorneys had been dissolved and that Bremer and Bing succeeded it as a new firm. The present complaint alleged that the .policy sued upon was issued by Bremer and Bing as copartners doing business as Bremer, Fisk & Bing. The sole question, therefore, presented upon this appeal is whether, by the terms of the power of attorney, Bremer and Bing or either of them could .exercise the powers (and thus bind the plaintiff) conferred by the instrument. It is true that the power of attorney recites that it is made “ by and between each of the parties of the first part (underwriters) and by and between each of the parties of the second part (the attorneys) ; but, throughout the instrument, and in every operative part thereof, it appears that all the acts are to be done by the three attorneys jointly, as well the issuance of policies as the receipt of premiums, the reporting and notification to underwriters, etc., etc. See Hawley v. Keeler, 53 N. Y. 116; Kind v. Barry, 66 Misc. Rep. 188. Under the circumstances, it appears evident that the policy issued by but two of the attorneys was not one issued in compliance with the power, and is, therefore, not binding on the defendant. . Judgment reversed and new trial ordered, with costs to appellant to abide the event. Seabury and Guy, JJ., concur. Judgment reversed.