Crichton v. Columbia Insurance — 81 A.D. 614

Majority

p. 614

Frederick T. Crichton, as Duly Substituted Assignee of McDowall, Carroll & Company, Respondent, v. Columbia Insurance Company, Appellant.

Headnote

Complaint for procuring insurance for a foreign insurance company—it is not demurrable because it does not allege compliance by the defendant with the Insurance Law — entering upon an interlocutory judgment a second interlocutory judgment.

A complaint in an action brought to recover for services rendered by the plaintiffs assignor in placing insurance for the defendant, a foreign insurance company, in the State of New York, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action because it fails to allege affirmatively that the defendant had complied with the provisions of the Insurance Law (Laws of 1893, chap. 690, as amd. by Laws of 1893, chap. 735), and that consequently the agreement of the plaintiffs assignor to act as its agent was not unlawful under section 50 of the Insurance Law.

The practice of entering a second or supplemental interlocutory judgment upon an interlocutory judgment overruling a demurrer to a complaint is unauthorized.

Appeal by the defendant, the Columbia Insurance Company, from an interlocutory judgment of the Supreme Court in favor of

p. 615

the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer- to the plaintiff’s complaint. Also (as stated in the notice of appeal) from a judgment of the Supreme Court in favor of the plaintiff, entered in said clerk’s office on the 1st day of December, 1902, upon said interlocutory judgment overruling the defendant’s demurrer.

Albert A. Wray, for the appellant.

David M. Neuberger, for the respondent.

This action is to recover for services rendered by the plaintiff’s assignor as the agent of the defendant in obtaining insurance in this State. The demurrer is upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. This objection to the complaint is based upon section 50 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1893, chap. 725.) That section provides that no person or corporation shall act as agent for any foreign insurance corporation in the transaction of any business of insurance within this State, or negotiate or place risks for any such corporation, or in any way or manner aid such corporation in effecting insurances or otherwise in this State, unless such corporation shall have fully complied with the provisions of this statute, and for a violation of this provision there is imposed a tine, and it is claimed by the defendant, for whom the plaintiff’s assignor acted as agent in placing insurance, that the complaint is insufficient because it fails to allege that the defendant fully complied with the provisions of this law.

The demurrer being upon the ground that upon the face of the complaint it does not state facts sufficient to constitute a cause of action, this demurrer is not well taken, unless, the objection relied upon appears from the complaint. There is nothing in the complaint to show that the defendant had failed to comply with the Insurance Law and that the agreement of the plaintiff’s assignor was in violation of section 50 of that act. The complaint alleges, and

p. 616

the defendant by its demurrer admits, that it employed the plaintiff’s assignor to obtain insurance in this State, and that in pursuance of that employment the plaintiff’s assignor did obtain such insurance for which the plaintiff’s assignor was entitled to receive the compensation agreed upon. Unless it- appears from the complaint that the defendant had failed to comply with the provisions of ■ the law which authorized it to do business here, the court would not upon demurrer assume that the defendant had acted in violation of the law in accepting insurance in this State and employing plaintiff’s, assignor to obtain such insurance. As, therefore, the objection specified does not appear upon the face of the complaint, the demurrer was properly overruled.

The cases relied upon by the defendant which hold that before obtaining an attachment or other provisional remedy where the statute requires that the plaintiff must show to the satisfaction of the court that he had a cause of action, do not apply; for in, those cases before the plaintiff is entitled to the remedy he must show that he has a cause of action, but to entitle the defendant to have ■ a.'demurrer to the complaint upon this ground sustained, it must distinctly appear upon the face of the complaint that the plaintiff has no cause of action. This distinction has been pointed out so many times in the reported cases that it is only necessary to refer to it. We think, therefore, that the demurrer was properly overruled and that the interlocutory judgment overruling it must be affirmed,, with costs.

In this case, however, the plaintiff has entered a judgment based upon the interlocutory judgment containing substantially the same provisions as are contained in the interlocutory judgment. We have, therefore, in this case a decision of the court, an interlocutory judgment entered thereon, and another judgment entered upon the interlocutory judgment. Just the object of this latter judgment it is difficult to conceive. It gives the plaintiff no greater right than the interlocutory judgment gave. It is unauthorized by any section of the Code or any practice of which we are aware. As the defendant has also appealed from this judgment and as it is entirely unauthorized, the second or supplemental interlocutory judgment, must be reversed,'with Costs to the appellant. The appellant tO' have leave to withdraw the demurrer and answer the complaint.

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within twenty days after the service of the judgment entered upon this appeal and upon payment of the costs on the appeal from the interlocutory judgment in this court and costs in the-, court below.

Van Bbunt,. P. J., Pattebson, O’Bbien and Hatch, JJ.,, concurred.

Interlocutory judgment affirmed, with costs. Supplementary-interlocutory judgment reversed, with costs to appellant. The-, appellant to have leave to withdraw demurrer and answer in twenty-days on payment of costs of appeal from interlocutory judgment in this court and costs in the court below.