In re Hotchkiss

123 N.Y.S. 511 | N.Y. App. Div. | 1910

Scott, J.:

This is an appeal from an order authorizing the Superintendent of Insurance to take possession of the New York and New England Underwriters at Lloyds of New York City, and restraining said underwriters from continuing to transact business except through said Superintendent. The procedure is authorized by section 63 of the Insurance Law. The appeal is prosecuted by an attorney styling himself attorney for the New York, arid New England Underwriters, at Lloyds of New York City,.but it is not made clear that. he represents any one entitled' to be designated as such an underwriter, or who is affected by the order appealed from. He 'explicitly disclaims any retainer by or right, to appear for the-individuals who at the time of making the order appealed from were acting as underwriters at. said Lloyds. He appears to represent ..four individuals who claim to own a sort of charter or franchise to do business as' individual underwriters under the name above specified, which they.use as. merchandise, granting rights to do business thereunder to successive groups of individuals, preferably apparently those who are-financially irresponsible. These four so-called owners do not underwrite themselves, and in their contracts with or licenses to others carefully protect themselves against any liability upon insurance losses. It has not been explained to us, and we have not been able, to discover, what rights or interests these so-called owners of the New York and New England Lloyds have in the use of that name, since they ceased to be underwriters themselves. It would seem that if they ever had any such right, title or interest they have long since forfeited it by ceasing to do an insurance business. (People v. Loew, 23 Misc. Rep. 574.) It is not, therefore, made clear that the attorney who prosecutes this appeal represents any one who is entitled to be heard in opposition to the motion of the Attorney-General.

But if we assume that those .whom he represents are so entitled, still this appeal cannot prevail. The motion was brought on by an order to show cause. The attorney for the appellant twice appeared and obtained adjournments, without qualifying his appearance in any way. When the motion came on to be heard he interposed two preliminary objections which were overruled. He then suffered the order to be entered upon his default, contenting himself with his preliminary objections, which he now urges upon us on this appeal. The same objections were before us on a former appeal in this proceeding, and were not deemed to be of sufficient importance to require a written expression.of opinion. ' (Matter of Hotchkiss, 137 App. Div. 945.) But even if we should consider them well taken the appellant' is in no position to raise them here because the order, having been entered, on default,- is not appeal-able. (Matter of Radam Microbe Killer Co., 114 App. Div. 199; Code Civ. Pron § 1294.) If, after his preliminary objections had been overruled, the attorney had opposed the motion and thus made himself a party to the order, an appeal from the order would have brought up for review his'preliminary objections. As it is, however, since the order is not appealable, the present appellant (or appellants), whoever he or they may.be, are left to a motion to open the default. If on such a motion the attorney who submits it is able to show to the court that lie represents any one who is entitled to be heard in opposition to the motion, or will be aggrieved by the-order-applied for, and if- lie is able to offer a sufficient legal excuse for having suffered the motion to go against him by default, it may be that he will be permitted to come in and oppose the motion.

The appeal should be dismissed, with ten dollars costs and disbursements. '

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Appeal dismissed, with ten dollars costs, and disbursements.