82 N.Y.S. 707 | N.Y. Sup. Ct. | 1903
The defendant indemnity company is surety on a bond given by the defendant Bowker under the Liquor Tax
It is also held that a local agent to whom policies are issued in blank to be countersigned and delivered is, for the purpose o£ delivering the policy and effecting the insurance, the general agent of the company, and has full power to waive provisions in the policy with respect to the conditions upon which it shall have inception and go into operation as a contract. Wood v. American Fire Ins. Co., 149 N. Y. 382, 385; Robbins v. Springfield Fire Ins. Co., Id. 477.
The clerk in the office of the local agent may fill up, execute and even countersign policies, and waive provisions and conditions the same as his principal, the company’s agent, may do.
The General Term in this department has held that such clerk, where the policy reads that it shall not be binding until countersigned by its authorized and commissioned agent, may countersign the policy and that it is valid. Clark v. Glens Falls Ins. Co., 21 Wkly. Dig. 197.
In this case it cannot be doubted that the defendant’s general superintendent might have personally delivered this bond without Channél’s countersigning it, and that the company could not defend upon the ground that it was not countersigned. Channel being the general agent at Malone for the issuing of these bonds, if he had in person delivered this bond to the treasurer without being countersigned, the defendant could not defend, for the countersigning was only to insure the delivery by him and related only to the manner in which the bond should be executed and delivered. This is squarely held in Myers v. Keystone M. Life Ins. Co., 27 Penn. St. 268, approved in Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 440. The above case establishing that if the bond had been issued by Channel himself and not countersigned it would be valid, it must follow that having been delivered by his clerk, with his consent and approval and presumably by his direction, it is equally valid. The defendant contends that Channel could not delegate to his clerk the discretion and powers conferred upon him. But it is held that performing these duties by his clerk is performing them by himself and is not a delegation of the powers. An insurance agent, or bonding agent, must have the right to employ a reasonable ánd necessary clerical force, and his clerks, acting under his direction and within his authority, must have power to bind his companies. We cannot assume that Channel did not, by directions to his clerk, exercise all the discretion which the defendant desired him to use and which it was his duty to do. Neither can we assume that the clerk acted outside of his instructions. It is a fair inference, therefore, that this particular bond was issued by Channel in the ordinary course of business, and that while the clerk performed, the acts they were done pursuant to the discretion and directions of the agent. According to the law this bond could have been accepted only as a completed instrument, and Mr. Channel and his clerk acting for him must have known, when the bond was delivered to the
Judgment for plaintiff.