Opinion
February, 1910.
Arnold L. Davis, for appellant.
Mortimer M. Menken and Howard T. Cole, for respondent.
Defendant was one of the underwriters of an unincorporated association known as the New York Fire Lloyds. The underwriters, by power of attorney, appointed three attorneys in fact, one of whom was the defendant, with power to act jointly and severally. They were authorized, among other things, to adjust and compromise losses, to contest claims, and to defend, compromise or settle suits brought on account of the policies issued by them. Plaintiff's assignors were attorneys at law, and were employed by one of the other attorneys in fact to defend certain suits and settle others. By their contract of employment, which is contained in the correspondence, each underwriter was to be directly liable to plaintiff's assignors for his share of their compensation. We do not think that the power of attorney gave any authority to the attorneys in fact to insert such a stipulation in the contract. It was their own duty to supervise the defense and settlement of these suits and, incidentally, to settle with their attorneys at law for the services of the latter. The policy which has been put in evidence as a sample is signed by fifteen of the underwriters, among whom this defendant is responsible for only one-thirty-ninth. If this is his proportionate risk upon the policies in connection with which plaintiff's assignors performed their services, his total pecuniary responsibility, according to their claim, would have been but about forty-six dollars; and yet to defend an action he would have to examine into the facts concerning twenty-two different suits or settlements. The underwriters were not individually responsible to plaintiff's assignors, and the contract of the latter was not made with the defendant in his capacity as one of the attorneys in fact.
Hence the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
SEABURY and GUY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.