Thompson v. Colonial Assurance Co.

70 N.Y.S. 85 | N.Y. App. Div. | 1901

.McLaughlin, J.:

The complaint in this action alleges that the plaintiffs, under their firm name of Thompson & Bellows, associated themselves with fourteen other persons under the name of The Individual Underwriters at Commercial Lloyds, for the purpose of doing a fire insurance business, and as such the association issued and delivered policies of fire insurance to different persons for a certain consideration, in and by which such persons were indemnified against loss by fire to an amount stated in their respective policies, each of the underwriters for himself and not for the others, being liable for one-fifteenth part of any loss sustained, separately and not jointly; that after such policies had been issued, the association entered into a contract with the defendant, a copy of which is annexed to and made a part of the complaint, in and by which, for the consideration of $25,0.00j it reinsured the entire liability of The Individual Underwriters at Commercial Lloyds on all policies in force on the 21st day of December, 1897, to the extent of $250,000.

The complaint further alleges that losses for which the individual underwriters had become liable on policies issued by The Individual Underwriters at Commercial Lloyds, and the plaintiffs’ separate liability as one of such underwriters, were the amounts stated in the complaint, which had been paid by the plaintiffs and which the defendant, under the contract of reinsurance, was liable to pay, for which sum judgment was demanded.

■ The defendant demurred to the complaint upon the grounds, (1) that there was a defect of parties plaintiff, in that the other persons who were associated with the plaintiffs under the name of The Individual Underwriters at Commercial Lloyds were not made parties plaintiff; (2)'that the plaintiffs have not the legal capacity to sue, in that the legal obligation of the defendant, if any, under its agreement, was not to the plaintiffs individually, but to the association known as The Individual Underwriters at Commercial Lloyds; and (3) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained and from the interlocutory judgment entered the plaintiffs have appealed.

We are of the opinion that the demurrer was properly sustained. The contract of reinsurance made with the defendant' and upon which the plaintiffs predicate their right to recover, was made not with the individual members composing the association, but with the association itself; that is, with the aggregation of persons doing business as The Individual Underwriters at Commercial Lloyds.

The defendant obligated itself to pay the plaintiffs and their associates jointly, and every member of the association has an interest in whatever sum is paid. It is a joint obligation and, before the defendant can be compelled to pay, all of the parties interested in the recovery must be before the court. (McMahon v. Rauhr, 47 N. Y. 67; Habicht v. Pemberton, 4 Sandf. 657.) The rights of the parties under the agreement can neither be increased nor diminished by allegations of the complaint. The contract speaks for itself. It is made a part of the complaint, and when the allegations of the complaint are read in connection with it, it is obvious that whatever rights the plaintiffs have under it can only be enforced when all of their associates are before the court and are in a position to participate in the result of the action. Defendant’s contract is with the association and not with the individual members of it.

The judgment appealed from must, therefore, be affirmed, with costs, with leave, however, to the plaintiffs tó amend their complaint •on payment of the costs in this court and in the court below.

Yak Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs, with leave to the plaintiffs to amend the complaint on payment of costs in this court and the court below.