Lindau v. Royal Insurance — 27 N.Y. St. Rep. 190

Majority

p. 190

Leopold Lindau, App’lt, v. The Royal Insurance Company, Resp't.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Pleading—Demurrer.

The plaintiff demurred to a defense, in an action upon an insurance policy, which alleged that plaintiff’s assignor had begun formerly an action upon the same policy, which former action was by consent of the attorney therein duly and regularly dismissed, in consideration of the dismissal being allowed without costs; that the policy was thereupon surrendered to defendant for cancellation and had ever since remained in its possession. There was no allegation in the complaint that the said attorney was not authorized to consent to such discontinuance. Held, that the demurrer could not be sustained.

Appeal from an interlocutory judgment overruling a demurrer to one of the defenses set up in the answer.

Meyer J. Stein, for app’lt; S. Hanford, for resp’t.

This is an action upon a policy of insurance brought to recover the amount of a loss by fire. The plaintiff is the assignee of the asserted claim. The answer contained, amongst other things, the averment that after the fire had occurred the plaintiff’s assignor presented, as required by the policy, an account of the loss sustained, but which was false and fraudulent, as he well knew at the time he presented it to the defendant, and that by reason of the premises he forfeited all benefit under the policy. Then follows the defense objected to, which asserts the

p. 191

commencement by the assignor of various actions in the superior court of this city against companies whose policies he had obtained, and, among others, one against this defendant in that court, in which the complaint contains substantially the same allegations as those in the complaint herein, excepting only the allegation touching the alleged assignment of the policy; that the defendants in the said several actions in due season answering, set out in substance the same matters alleged herein, and that one of the actions, namely: that against the People’s Fire Insurance Company of Worcester, Massachusetts, in which the defense was substantially the same as that set forth in the answer of this defendant, was brought to trial in this city and resulted in a judgment dismissing the complaint, with costs; after which occurrence the complaint in the action brought against this defendant by the plaintiff’s assignor and then pending was, by consent of his attorney, dismissed, in consideration of the dismissal being allowed without costs; and that the policy of insurance was surrendered for cancellation, and has ever since remained, and still remains, in the possession of this defendant; and further that a formal order of discontinuance of the suit was duly entered.

The learned justice in the court below disposed of the case in a very brief opinion, in which he said that though a portion of the answer was a useless historical recital, and did not pretend to state a defense, the material portion was contained in the final paragraph stating a settlement upon consideration and surrender of the policy, and certainly contained an averment which, if true, would defeat the claim.

The only suggestion made in regard to this view of the case, upon this appeal, is that the authority of an attorney does not extend to a compromise. He could not, therefore, settle the suit and conclude his client in reference to the subject matter of the litigation without the special authority of the latter, a proposition sustained by the citation of numerous authorities. It is not necessary to consider them, for the reason that while that legal proposition, if the facts warranted its application, might present a good response to the defense referred to, it could not avail the plaintiff upon demurrer, inasmuch as it does not appear from anything in the complaint stated that the attorney was not authorized to consent to the discontinuance pleaded.

The judgment appealed from should be affirmed, with costs, and the plaintiff, upon payment of costs, allowed to withdraw his demurrer.

Van Brunt, P. J., and Daniels, J., concur.