39 N.Y.S. 585 | N.Y. App. Div. | 1896
Lead Opinion
The facts upon which the questions of law presented by the demurrer are raised are fully and accurately stated by the learned judge at Special Term in the opinion there filed. The main ques
What difference is there between a stipulation to abide by the event of one suit without bringing the other ninety-nine and a stipulation to abide by the event of one suit after bringing the other ninety-nine ? In each case the party is entitled to judgment and execution upon the final decision of the one suit. He may not secure it quite as.speedily in the one case as in the other. But the immediate right thereto is the same. The only substantial difference is that costs are saved in the one case and incurred in the other. And that difference in the policy in question is to the advantage of both parties. There is here no attempt to oust the court of a:iy ¡cart of its jurisdiction, or to supersede the ordinary methods of trial, or to deprive the assured of the protection of the law. The stipulation simply recognizes the undoubted fact that, while the underwriters contract severally, their obligation is precisely alike, under the same policy, signed by alh These views are not antagonistic to those expressed in Knorr v. Bates (14 Misc. Rep. 501). There the agreement was — so said the court—that no action should be brought against any of the underwriters, but only against their attorneys in fact. The learned court held that that provision in tlio policy amounted to a stipulation that in no event should the underwriters be sued for the enforcement of their obligation. It is true that the underwriters there agreed to abide the result of the action against their attorneys, but the court held that the attorneys were not parties or privies to the underwriters’ promise; that they were strangers to the contract, and that an action could not be maintained against them upon it. We took a different view of the liability of attorneys in fact for certain underwriters in Leiter v. Beecher (2 App. Div. 577), where the question arose in a direct action against such attorneys. But the ruling in Knorr v. Bates (supra) proceeded entirely upon the view there entertained, that no action would lie against the attorneys, and con
This conclusion leads to the reversal of the judgment appealed from, so far as the demurrer to the second defense is concerned. The right to insist upon the terms of the contract is not waived by failure to demur to the complaint. What is thereby waived is the right to object to the improper joinder of separate causes of action against each individual defendant. The plea which is here demurred to is not a plea against such improper joining of causes of action, but a plea that the action is brought in violation of the terms of the contract. The contract provides that suit shall not be brought against more than one of the underwriters at one time. The answer pleads that stipulation, and seeks its enforcement. That has nothing to do with the improper joining of causes of action. It goes to the root of the contract obligation, and, waiving all questions of form, insists, as matter of substance, that the contract obligation shall be respected. The action is brought against all — consequently against more than one at one time. To this all can plead the limitation of .the contract. The one first served can, equally with the others, plead this limitation, for he is prejudiced by the violation of the stipulation on that head. Instead of defending alone, unhampered and unembarrassed by the presence of other underwriters, and by the difficulties of procedure to which their presence may give rise, he finds himself in an action essentially foreign to that contracted for. Instead of now defending with the ease, directness and simplicity of procedure given to a single defendant, he is compelled to share the developments and vicissitudes of a complex litigation in which the single issue between himself and the .plaintiff maybe delayed, clouded and complicated by the issues raised between the plaintiff and the other defendants. It was to avoid all this, as well as to save expense, that the stipulation in question was made. It was to avoid not merely an improper joinder of causes of action, but the bringing of more than one action against one under
The plea avers that “in violation of the said stipulation, and of said terms and conditions of the said policy, the plaintiff has brought this action against more than one of the persons who were Underwriters, on the policy set out herein, at one time.” The demurrer admits the truth of this averment. The plea was consequently good, and should have been sustained.
We think, however, that the demurrer to the third defense was properly sustained. The stipulation of the contract, that no action shall be brought upon the policy in any court after three years from the time the accident occurred, must be read in connection with the stipulation already discussed. On holding that the latter is valid, the conclusion follows that the limitation as to the time within which an action must be brought relates to the action contemplated by the parties, namely, against one underwriter at one time. The present action was brought upon the policy within the three years. That is averred in the plea. The action as brought may not be sustainable owing to the objection already considered. In fact, it may not be the action which the parties intended. But the fact that the action may fail" because it is not brought against one underwriter at one time, does not affect the present question. The defendants, as we have seen, are severally liable. An action against one of them was commenced when the first defendant was served. That saved the
It follows that the judgment appealed from should be reversed as to the second defense, and affirmed as to the third defense, without costs of this appeal or’ of the Special Term, with leave to the plaintiff to apply at Special Term for such relief as it may be advised is necessary.
Van Brunt, P. J.,Rumsey and O’Brien, JJ., concurred ; Ingraham, J., dissented. .
Dissenting Opinion
This action is brought to recover for a loss under a policy of insurance, whereby these defendants agreed to insure the plaintiff against all liability arising from accidental bodily injury or loss of human life caused to any employee or employees of the plaintiff at .the place or places mentioned in the application. The policy of insurance or contract, to enforce which the action is brought, is ■annexed to the complaint and made a part thereof. The complaint demands judgment against each of the individuals and co-partnerships made defendants for the sum of $250, with interest. The contract annexed to the complaint, after reciting the consideration, provides that “ each of the subscribers hereto, as a separate underwriter, does for himself, and not one for the other, hereby insure the New Jersey and Penn. Concentrating Works, from the 8th day of June, 1892, to the 8th of June, 1893, at noon, against the following several risks, * * * subject to the following conditions : 1. The liability of each of the underwriters and the amounts
The second defense alleges as a defense by these ansAvering defendants the provision of a clause in the contract known as clause 9, whereby the assured stipulates that suit shall not be brought or maintained upon any claim arising out of the present insurance against more than one of the undenvriters at one time, and alleges that, in violation of this stipulation and of the said terms and conditions of the said policy, the plaintifi has brought this action against more than one of the persons Avho are underwriters on the policy set out herein at one time. I do not think that this defense as pleaded is sufficient on the face thereof. This contract sued upon is a several contract, each one of the underwriters severally becoming liable to the plaintiff for one-hundredth of the aggregate amount insured thereunder; and each of the subscribers, as a separate undenvriter, binds himself severally, and not jointly with any other one,, for the true performance of the terms of the agreement for the amount expressed to be insured by him. The obligation is, therefore, several and not joint, and the liability of each separate undei-Avriter to the plaintiff is for a specific proportion of the amount
Section 454 of the Code of Civil Procedure does not apply because each party to this policy or contract is liable only for a separate amount —■ one-hundredth of any loss. That section refers only to a case where two or more parties are severally liable to pay the entire amount which is sued for; and the mere fact that, where two parties are severally liable to pay the same sum of money, they may be joined in one action, does not allow a suit to be brought ■ against two parties who are severally liable not to pay the same, amount, but each one to pay a separate and distinct amount. Nothing in this section is intended to affect the provision contained in section 484 of the Code, which expressly provides that, to'justify the plaintiff in uniting in the same complaint two or more causes of. action, it must appear that such causes of action affect all the parties to the action ; while here it expressly appears, upon the face of the complaint, that the judgment that the plaintiff asks against each defendant does not in any way affect the other defendants. This misjoinder of causes of action was a defect appearing upon the face of the complaint, and, under section 488 of the Code, subdivision 7, was an objection to. the complaint and a ground of demurrer. That objection to the complaint not having been taken by demurrer, under section 499 of the Code it is waived.
The provision in the contract which is made the basis of this defense is that suit “ shall not be brought or maintained upon any claim arising out of the present insurance against more than one of the underwriters at one time.” The plaintiff, thus had a right to bring a suit against one of the defendants. He brought it against all. He had a good cause of action against the individual whom he first served in this suit brought against all of the defendants upon the
I think it clear, therefore, that this joint answer of these defendants, without alleging that any action other than the one in which this defense is interposed is pending, is wholly insufficient as a defense to the cause to action alleged in the complaint, and that the question discussed by the learned judge at Special Term, and by the counsel on this appeal, is not presented in this case. I agree, however, with Mr. Justice Barrett that this clause in the contract is not open to the objection relied upon by the learned judge at Special Term. There is no covenant here, that the parties to this instrument shall not have full liberty to prosecute or defend in the courts of this State. It is simply an agreement by which the method of enforcing this- particular contract is regulated. The plaintiff has the right to sue on the contract. It sinrply agrees that it will bring its action to enforce the separate obligation of one defendant before it brings its action against the others, and it is difficult to see what objection there is to the parties making such an agreement or to the court’s enforcing it.
The plaintiff also, demurs to the third defense set up in the answer. That defense alleges that, “ in and by the policy set forth jn this answer, it is provided that no action shall be brought upon said policy, in any court, after three years from the time that the accident occurred, upon or by reason of which the cause of action accrues.” The defense further alleges that the summons and com
The judgment appealed from should, therefore, be affirmed, with costs.
Judgment reversed as to the second defense and affirmed as to the third defense, without costs of this- appeal or of the Special Term, with leave to the plaintiff to apply at Special Term for such relief as it may be advised.