Opinion
October 6, 1937.
Plaintiff instituted this action against defendants seeking alternative relief. He demands judgment reforming a certain policy of fire insurance issued by the defendant insurance company and if such relief is not obtainable then he seeks damages against defendant Taylor Company for its negligence for procuring an inadequate policy of insurance. In his complaint he alleges "that the defendant Archibald Taylor Co., Inc., at all the times hereinafter set forth was a general agent of the Home Insurance Co., New York." He instituted a prior action against the defendant insurance company to recover upon the policy which resulted in a judgment for defendant. ( Gibbs v. Home Ins. Co., N Y, 250 App. Div. 802.) Both defendants have moved to dismiss the complaint. In view of the determination of this court in the former action the present action is not maintainable against defendant Home Insurance Company. The action against Taylor Co., Inc., is not maintainable because it clearly appears from the complaint that that defendant was the authorized agent of a disclosed principal, the codefendant. Where an agent is duly constituted and names his principal and contracts in his name and does not exceed his authority the principal is responsible and not the agent. Here defendant Taylor Co., Inc., was acting as agent not for plaintiff but for the codefendant, insurance company. Consequently the defendant Taylor Co., Inc., is not liable. Order denying motion to dismiss the complaint as to the defendant Archibald Taylor Co., Inc., reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Hill, P.J., Rhodes, McNamee and Heffernan, JJ., concur; Bliss, J., dissents.