Fire Department v. Kavanagh

79 Misc. 295, 140 N.Y.S. 871

• Court: New York Supreme Court
• Decided: February 15, 1913
• Status: Published

Opinion

Sawyer, J.

That the insurance in question was effected by defendants within the meaning of the statute I entertain no doubt (Century Dictionary, “Effect,” subd. 2), and that in so doing they acted as “agent,” seems likewise clear. Insurance Law, § 4-9.

My review of sections 133, 134 and 135 of the Insurance Law, had in the light of the argument and explanations advanced by counsel, confirms my belief heretofore expressed as to the legislative intention of their enactment and the construction which is to be placed upon them. The sections, in their application to agents of foreign insurance companies, make no distinction between residents and nonresidents of any locality. The phraseology is mandatory. Every person effecting such insurance as agent shall, before so doing, file the required bond with the proper officer in the city or village where the insured property is situated. Fire Department of East Rochester v. Barley, 73 Misc. Rep. 628.

That by their misapprehension of this statute defendants have unwittingly subjected themselves to the penalty therein provided, is to be regretted, but the court can do nothing to relieve them.

In accordance with the foregoing, judgment is directed for plaintiff, with costs.

Judgment for plaintiff, with costs.