Indemnity Insurance Co. of North America v. Brennan

Appellate Terms of the Supreme Court of New York

Indemnity Insurance Co. of North America v. Brennan

180 Misc. 430, 42 N.Y.S.2d 633, 1943 N.Y. Misc. LEXIS 2049

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 1943

StatusPublished

This text of 180 Misc. 430 (Indemnity Insurance Co. of North America v. Brennan) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Indemnity Insurance Co. of North America v. Brennan, 180 Misc. 430, 42 N.Y.S.2d 633, 1943 N.Y. Misc. LEXIS 2049 (N.Y. Ct. App. 1943).

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Opinions

Per Curiam.

A surety company, which executes its bond for an administrator at a premium of fifty-one dollars and fifty cents and requires an indemnity agreement with a clause for payment of its obligation for expense or attorney fees by reason of execution of the bond, is not entitled to payment for attorney fees for supervising, aiding or coercing the performance of duty or making payments required under the law by the administrator. It may not interject itself into the administration of the estate and obtain payment for expense or attorneys’ fees. An attempt to obtain discharge of its bond by requiring the administrator to account does not furnish grounds for such payment. It is only when there is default of performance of his duty under the law by the administrator and bona fide demand upon the surety company of performance of its own obligation under the bond that the surety company may assert liability under the indemnity agreement.

Judgment reversed, with thirty dollars costs, and judgment directed for defendants, with costs.

Hammer and IIecht, JJ., concur; Shientag, J., dissents.

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Per Curiam.

A surety company, which executes its bond for an administrator at a premium of fifty-one dollars and fifty cents and requires an indemnity agreement with a clause for payment of its obligation for expense or attorney fees by reason of execution of the bond, is not entitled to payment for attorney fees for supervising, aiding or coercing the performance of duty or making payments required under the law by the administrator. It may not interject itself into the administration of the estate and obtain payment for expense or attorneys’ fees. An attempt to obtain discharge of its bond by requiring the administrator to account does not furnish grounds for such payment. It is only when there is default of performance of his duty under the law by the administrator and bona fide demand upon the surety company of performance of its own obligation under the bond that the surety company may assert liability under the indemnity agreement.

Judgment reversed, with thirty dollars costs, and judgment directed for defendants, with costs.

Hammer and IIecht, JJ., concur; Shientag, J., dissents.

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Bluebook (online)

180 Misc. 430, 42 N.Y.S.2d 633, 1943 N.Y. Misc. LEXIS 2049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indemnity-insurance-co-of-north-america-v-brennan-nyappterm-1943.