Unterberg v. Elder

• Decision Date: 09 June 1914
• Citation: Unterberg v. Elder, 211 N.Y. 499, 105 N.E. 834 (N.Y. 1914)
• Parties: UNTERBERG v. ELDER.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 499

105 N.E. 834

UNTERBERG

v.ELDER.

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Israel Unterberg against Robert H. Elder. From a judgment of the Appellate Division (149 App. Div. 647,134 N. Y. Supp. 242) reversing a judgment of the Appellate Term (72 Misc. Rep. 363,130 N. Y. Supp. 166) reversing a judgment for plaintiff, defendant appeals. Reversed.

See, also, 150 App. Div. 905,135 N. Y. Supp. 1147.

Otho S. Bowling, of New York City, for appellant.

Wendell P. Barker, of New York City, for respondent.

CARDOZO, J.

The plaintiff sues upon a Lloyds policy of fire insurance. He says that the defendant is liable as an underwriter. The policy was signed in behalf of the underwriters by Jefferson D. Bremer and Charles E. Ring, as attorneys in fact. The power of attorney under which they assumed to act ran to Jefferson D. Bremer, Charles E. Ring, and John A. Fiske. The question is whether the power has been well executed when but two of the three agents have concurred in issuing the policy.

The plaintiff, to prove his case, put in evidence the power of attorney by which the three agents were appointed. He put in evidence also a judgment roll by which it appeared that he had recovered judgment against two of the three agents. No other evidence was offered by either party. It is on this meager record that the case comes before us.

[1][2] An authority conferred by a principal upon two or more agents is presumed to be joint. Hawley v. Keeler, 53 N. Y. 114, 121;Martine v. International Life Ins. Socy., 53 N. Y. 339, 342,13 Am. Rep. 529;Kind v. Barry, 66 Misc. Rep. 188,121 N. Y . Supp. 324;Green v. Miller, 6 Johns. 39, 5 Am. Dec. 184. This rule, it is true, is not an inflexible one. It yields to indications of a contrary intent. Such indications may be looked for in the surrounding circumstances, or in the course of dealing, or in the terms of the power. In this case we have no evidence either of the surrounding circumstances or of the course of dealing. We are thus confined to the terms of the power; and, thus confined, we are unable to say that the case has been brought outside of the rule and within the exceptions to it.

The operative part of the agreement, as distinguished from its recitals, contains nothing to suggest the grant of a several agency. A majority of the justices at the Appellate Division found, however, in the words with which the agreement opens, sufficient evidence that such an agency was contemplated. The words relied upon are these:

‘Agreement made and entered into this 7th day of July, 1902, by and between the underwriters or subscribers at the New York and New England Underwriters at Lloyds of New York City, parties of the first part, and Charles E. Ring, John A. Fiske and J. D. Bremer, subscribers, underwriters and attorneys at New York and New England Underwriters at Lloyds of New York City, parties of the second part, and by and between each of the parties of the first part, and by and between each of the parties of the second part.’

We do not think that this recital affects the character of the agency. The words ‘by and between each of the parties of the first part, and by and between each of the parties of the second part,’ have a less precise and certain meaning than the words ‘jointly and severally.’ But even if the latter words had been added after the descriptive words that have been quoted, the grant of agency would remain the same. The covenants in that view would be several; each party would be severally bound to comply with them; each party would be severally liable for any default; but the grant of power to three agents nominatim would remain a grant to them collectively. The agents have no power except as this instrument confers it, and the instrument confers it on the parties of the second part.

A closer examination of the language of the agreement will confirm this conclusion. An industrious effort is exhibited, notwithstanding the opening recital, to distinguish between the rights and duties intended to be several and those intended to be joint. The underwriters are invariably spoken of distributively; the attorneys collectively. Throughout the 20 subdivisions this distinction is maintained. Nowhere is this more clearly disclosed than in the very subdivision defining the powers of the agents.

‘Each of the parties of the first part hereby authorize and empower the parties of the second part’-not each of the latter parties, be it observed, but the three men named in the opening words of the instrument-‘to do and perform for them and in their stead * * * any and every act or acts in relation to the writing, signing, renewing and indorsing any policy or contract of insurance accepted by...