Penn Mutual Insurance v. Bradley — 51 N.Y. St. Rep. 39

Majority

p. 39

The Penn Mutual Insurance Co., Resp’t, v. Edwin C. Bradley, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

1. Principal and agent — Estoppel—Foreign insurance companies.

One who has received moneys as agent in this state for a foreign insurance company cannot, when called upon for payment, he allowed to set up as a defense that such company was not authorized to do business in this state.

p. 40

2. Same — Pleading—Counteeclaim.

_ In an action for such moneys, an allegation in the answer that the plaintiff has failed and refused to pay defendant the compensation provided for by the agreement set forth in the complaint, which is reaffirmed as part of the answer, and that there is due from plaintiff a certain sum, does not constitute a counterclaim, and it is not error to refuse to find such allegation as a fact because of a failure to reply thereto.

Appeal by the defendant, Edwin G. Bradley, from a judgment entered against him and Harvéy BE. Bartholomew and Nelson S. Williams, as co-partners, in the Cattaraugus county cleric’s office, on the 11th day of January, 1892.

Rufus Scott, for app’lt; J. R. Jewell, for resp’t.

There is but one cause of action stated in the complaint. It was so held by this court upon an appeal from an order made in this action where that question was presented, and that is for money had and received by the defendants for the plaintiff while they were acting as plaintiff’s agents in procuring life insurance and collecting premiums, which premiums they failed to pay to the plaintiff and converted to their own use.

The appellant contends that the plaintiff was not entitled to recover the premiums for the reason that the company was not authorized to do an insurance business in the state of New York. There are two answers to this contention. The plaintiff’s complaint alleges that it was authorized to do an insurance business in the state of New York, and that allegation is admitted in the defendant’s answer to be true, and the defendants having received the money, as plaintiff’s agent, they are not at liberty, when called upon for payment, to set up such a defense.

The' referee did not err in refusing to find as facts the allegations in the third count of the defendant’s apswer because the plaintiff had neglected to reply thereto.

The facts stated do not constitute a counterclaim, and, therefore, nothing was admitted by plaintiff’s failure to interpose a reply.

The count is as follows :

“ Third answer: For third and other answer and as counterclaim the defendant alleges, upon information and belief, that the plaintiff failed and refused to pay the said defendants the compensation provided for by the terms of said written agreement set forth at folio five, of the complaint and herein admitted and now reaffirmed as part of this answer, and that there is due the defendant from the plaintiff therein the sum of $1,200, no part of which has ever been paid.”

If that portion of the complaint referred to should be incorporated into the defendant’s said third answer, it would still fail to state a cause of action.

The report of the referee is fully sustained by the evidence, and no reason appears for a reversal of the judgment.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.