(216 N.Y.S.) Appeal from Supreme Court, Erie County. Action by Piotr Glogowski and another against the Erie & Niagara County Farmers' Insurance Association and others. From a judgment for plaintiffs, as amended nunc pro tunc, and from an order denying named defendant's motion for a new trial, said defendant appeals. Reversed on the facts, and new trial granted. Argued before HUBBS, P. J., and CLARK, DAVIS, CROUCH, and TAYLOR, JJ. Carlton E. Ladd, of Buffalo, for appellant. Donnelly, O'Neil & Lindal, of Buffalo (Daniel J. O'Neil, of Buffalo, of counsel), for respondents. CROUCH, J. The defendant association is a co-operative insurance corporation organized under article 9 of the Insurance Law (as added by Laws 1910, c. 328). On May 17, 1922, it issued to one Walla and wife a fire insurance policy covering certain buildings and personal property located on a farm in the town of Boston, Erie county, N. Y. The date of expiration was May 11, 1927. The policy was held by the Bank of Hamburg as first mortgagee. On October 17, 1922, Walla and wife sold and transferred the farm and personal property to plaintiffs, taking a second mortgage on the farm and a chattel mortgage on the personal property as security for part of the purchase price. The interest of the Wallas in the insurance policy was also transferred as part of the transaction. . The property was destroyed by fire on September 27, 1923. The defendant association denies liability, upon the ground that no notice of the change of ownership and of the additional incumbrances was ever given to it; that no agreement recognizing such changes and additions was ever indorsed on the policy; and that plaintiffs never complied with the provisions of the insurance contract relating to a transfer of membership and insurance. [1] The policy complied with the requirements of the then existent section 265 of the Insurance Law (as added by Laws 1910, c. 328, and amended by Laws 1924, c. 538, § 2). It conformed to the standard fire policy, stated on its face that it was issued on the co-operative plan, and had printed on the back thereof a copy of the by-laws. Under the statute and by-laws, all policy holders are and must be members. The by-laws provide that applications for membership and for insurance must be made on printed forms and must be approved by the executive committee, and a fee of $2 must be paid when the application is signed. Since only members may be policy holders, it is necessary for the transferee of a policy to become a member before the association indorses consent thereon and recognizes him as a policy holder. Applications for transfer of insurance and for membership must be made on printed forms 216 N.Y.S.-5 by transferees, must be approved by the executive committee, and a fee of $1 must be paid. This is referred to in the by-laws as a "change of insurance." The executive committee meets monthly, and may adjourn from time to time as business requires. Perhaps for that reason the by-laws provide that "the property shall be held insured until the applicant is notified of modification or rejection by the secretary." There is nothing in the reason for or in the language of this provision which makes it inapplicable to a transferee applicant. We think it applies to all applicants, whether original or otherwise. The by-laws also provide that a resident agent or collector, the office to be held by one person, who must be a member, may be appointed for each town in which as many as twenty-five members are insured. Such resident agent is entitled to receive the membership fees from new members and the fees paid by members for change of insurance, as mentioned above. The by-laws throw little light on the duties and authority of a resident agent. Reading them in connection with the testimony, however, it appears that he took applications for membership and insurance, both original and on transfer, collecting the appropriate fees, and sent them to the home office for the action of the executive committee. In the case of transfers, he also procured and sent along the policy with the application. He kept on hand application blanks which were furnished by the home office. He also collected assessments as they were levied, and, whenever his collections amounted to $200, he remitted to the home office. It seems also to have been part of his duties to appraise the properties when applications were made. The resident agent in the town of Boston was one Dye. There is evidence tending to show that on November 8, 1922, Glogowski, with one Janik as interpreter, went to Dye, and told him, in substance, that he had bought the farm from Walla; that he had a notice of an insurance assessment from the association addressed to Walla, which he desired to pay; that he then learned the insurance had not been transferred to his name; that Dye said, "If you will pay, I will give you the receipt for the money, * * and I am going to the Bank of Hamburg and see the fire insurance policy and have the name changed, and it need not worry you;" that he paid Dye the amount of the assessment and took a receipt therefor signed by Dye as "Collector"; that he told Dye he had given a second mortgage to Walla, but did not speak of the chattel mortgage; that at Dye's request he signed a paper of some kind by making his mark, Janik spelling Glogowski's name for Dye, who wrote it out. The complaint alleged that Dye was a general agent, authorized to receive applications, to issue policies, to continue policies in force, to make all proper indorsements thereon upon the transfer of title, and generally to perform all and every act and thing which a general agent might or could perform, and, in substance, that Dye's promise to get (216 N.Y.S.) the policy and have the proper indorsements made thereon was the promise of the defendant association. The trial judge sent the case to the jury on that theory, expressly charging that there was no proof that the plaintiffs ever signed a membership application. The theory that Dye, as an agent of limited authority, took an application from plaintiffs, and that, pending the action of the executive committee thereon, and until notice of modification or rejection, the property under the 'provisions of the by-laws was held insured, was either not advanced at the trial or was rejected. [2] The sole question, then, is whether, under all the evidence, Dye's authority was so broad as to make his act the act of the defendant association. The terms "general agent," "special agent," and their variants are commonly used for convenience but are of vague content. The extent of an agent's authority is not determined from his title alone. The question is always whether the particular act of the agent is within the scope of his actual or apparent authority, or, as it has been stated, "whether the third party had reasonable grounds for believing, under all the facts of the case, that the principal had authorized the act." Vance on Insurance, p. 306. [3] The policy contained the usual provision against waiver by any officer or agent except in writing indorsed upon or attached thereto, but that is not conclusive. The question still remains one as to the extent of authority. Smaldone v. President, etc., of Ins. Co. of North America, 162 N. Y. 580, 57 N. E. 168; Manchester v. Guardian Assurance Co., 151 N. Y. 88, 45 N. E. 381, 56 Am. St. Rep. 600. [4] So far as concerns Dye's actual authority to do the acts which it is claimed he promised to do, the evidence is undisputed that he had none. Nor is the case much stronger as to his apparent authority. He was the general storekeeper and postmaster at Boston, a hamlet in Erie county. Incidentally he took applications both original and upon transfer for membership and for insurance in the defendant co-operative association of which he was a member. In connection therewith he sometimes made appraisals of the property proposed to be insured. All applications and appraisals were passed along to the home office for action. He had no authority to pass upon and accept risks, to agree upon terms, to execute and deliver policies, or to make any indorsements thereon, nor is there any evidence that he had ever done so or that the association had ever, in any wise, held him out as having such authority. His name does not appear as agent or otherwise on the policy, nor is his countersignature necessary to its validity. The principle upon which the long line of cases, beginning with Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402, 10 Am. Rep. 495, and including Manchester v. Guardian Assurance Co., supra, were decided, is not applicable under the facts here. The verdict is contrary to the evidence on the question of authority. The judgment and order should be reversed on the facts, and a new trial granted, with costs to the appellant to abide the event. All concur. (127 Misc. Rep. 53) BELLIN V. MILLINERY WORKERS' UNION, LOCAL NO. 24, et al. (Supreme Court, New York County. April 1, 1926.) 1. Injunction 136(2)-Factory owner held entitled to injunction pendente lite, restraining posting of more than one picket at each entrance of his plant, and restraining violence, molestation, and threats. Factory owner, whose employees were on strike, held entitled to injunction pendente lite restraining labor union from posting more than one picket at each entrance of his plant, and restraining use of violence, molestation, threats, or implied threats. 2. Injunction 159/2-Fee of referee, who heard evidence on motion for temporary injunction, and fee of stenographer, held payable by defendants, where plaintiff was in main successful on his motion. Where plaintiff was in the main successful on his motion for temporary injunction in labor dispute, held that fee of referee, who heard evidence on motion, and fee of stenographer, was payable by defendants. Action by one Bellin against Millinery Workers' Union, Local No. 24, and others. On plaintiff's motion for temporary injunction. Motion granted in part, and denied in part. Arthur C. Mandel, of New York City, for plaintiff. Meyer London, of New York City, for defendants. CRAIN, J. [1] This is a motion for a temporary injunction restraining the defendants, their agents, servants, and employees from in any manner declaring a strike to have occurred, and restraining the defendants from parading Thirty-Eighth and Thirty-Ninth streets with placards upon their person indicating that a strike has been declared by the workers of the defendants' shop, and restraining the defendants from in any manner assaulting, beating, hitting, or maiming any of the employees of the plaintiff, and restraining the defendants from in any manner destroying or breaking machinery of the plaintiff or his goods, wares, and merchandise, and restraining the defendants from in any manner interfering with the rights and remedies of the plaintiff and the property of which he is possessed. In order that I might be better informed respecting the merits of the dispute, I directed For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (216 N.Y.S.) a reference in order that testimony might be taken and that I might receive the benefit of the views of the referee on the facts as they might be made to appear on the hearings. The learned referee, Harold Riegelman, has filed a painstaking and able report, after a very thorough investigation, and in harmony with his recommendations as to the disposition of this motion I hold that an injunction pendente lite should be granted restraining the defendants from picketing except by one picket at a time at each entrance to the building where plaintiff's place of business is located by which employees enter or leave the plaintiff's establishment, and that the injunction include a provision against the use of violence, molestation, threats, or implied threats. In all other respects the motion is denied. [2] The fee of the referee and the fee of the stenographer are to be paid by the defendants, for the reason that in the main the plaintiff has been successful upon the motion. Settle order on notice. (127 Misc. Rep. 78) Costs KAROLCZYK et al. v. GRATTON. (Supreme Court, Erie County. April 10, 1926.) 31-Where wife's cause of action for injuries and husband's cause of action for loss of her services and expenses were consolidated, and wife was successful, but not husband, held that wife was entitled to costs, and defendant to costs against husband as of course and not discretion (Civil Practice Act, §§ 1470, 1476, 1483, as renumbered by Laws 1921, c. 199, and section 1475, as renumbered by Laws 1921, c. 199, and amended by Laws 1922, c. 92). In view of Civil Practice Act, § 1483, as renumbered by Laws 1921, c. 199, and other sections relating to costs, where wife's cause of action for injuries and husband's cause of action for loss of her services and expenses were tried as a consolidated action, and separate verdicts, one in favor of wife and the other of no cause of action against husband, were rendered, held that plaintiff wife was entitled to costs as of course against defendant under Civil Practice Act, § 1470, as renumbered by Laws 1921, c. 199, and defendant was entitled to costs as of course against husband under section 1475, as renumbered by Laws 1921, c. 199, and amended by Laws 1922, c. 92, granting of costs not being matter of discretion under section 1476, as renumbered by Laws 1921, c. 199. Action by Joe Karolczyk and another against Joseph A. Gratton. On motion to vacate and set aside the judgment and to settle the form of the judgment. Judgment modified. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |