Metropolitan Life Insurance v. Callen — 22 N.Y. St. Rep. 43

Majority

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Metropolitan Life Insurance Co., App’lt, v. Edward Callen, Resp’t.

(New York Common Pleas, General Term,

Filed January 7, 1889.)

Headnote

Bond—Of insurance agent—Action on—Sufficiency of evidence.

Where, in a bond given by the agent of an insurance company for the; faithful performance of his duty, it was stipulated that certain books should be conclusive as to his receipt of premiums from policy holders, in an action against the surety such books were not introduced in evidence, and the only other evidence as to the default of the agent were his accounts, and certain receipts given and statements made by him; the agent testifying that he had paid over every cent collected: Held, that the complaint was properly dismissed.

Appeal from a judgment rendered in the district court for the ninth judicial district dismissing plaintiff’s complaint.

G. E. Howard, for app’lt; Early Martin, for resp’t.

—This action is brought by the plaintiff against the defendant as surety on a bond given the company for the faithful performance of his duty by one John Lane, an agent of the company.

The plaintiff claims that Lane, while acting as its agent, collected a certain amount of money which he failed to pay over to it. One of the provisions of the bond executed by • the defendant was that the total amount of the weekly-premiums in the life policy register, after deducting the total weekly premiums in the lapsed policy register, were to be debited to Lane’s account on Monday of each week, and that the balance should be considered as having been absolutely received by him for the company, and that the latter should not be bound to prove he had received the premiums from each policy holder.

Those books would, we think, under this provision have been equally conclusive on the surety who, by the terms of his suretyship, had made it so, had they been introduced in evidence; but they were not, as the justice held they had not been properly proven when offered, and the appellant does not here complain of their exclusion, but contends that certain calculations which were given in evidence, based

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upon Lane’s accounts, and certain receipts given by him, and statements made by him after his accounts had been rendered, were sufficient evidence upon which to base a judgment in its favor, and that the justice erred in dismissing the complaint.

The company had it within its power, by properly proving the books mentioned in the provision of the bond before referred to, to have conclusively established Lane’s default if he had made default, but failing in this, the justice properly held it to strict proof of such default, and although the •evidence submitted would have been binding on Lane, yet as against his surety, the contents of the accounts offered, the receipts and Lane’s admissions, were but the declarations of third persons, by which the surety could not be bound. Tenth Nat. Bank v. Darragh, 1 Hun, 111 ; Horn v. Perry, 14 id., 411; Hatch v. Elkins, 65 N. Y., 496 ; Kelum v. Clark, 97 id., 393.

This taken in connection with Lane’s testimony) that he had paid over every cent collected by him, we think fully justified the justice in reaching the conclusion he did.

The judgment must, therefore, be affirmed, with costs.