Ketchum v. Belding ( 1900 )

Eirzsyvrons, Ch. J.

This action is on a Lloyd’s fire insurance policy, the defendant and about fourteen other persons being underwriters. The policy provided that no action should be begun under it against the individual underwriters or any of them “ until after suit shall have been brought against the attorneys for the underwriters and for the full amount of the loss or claim,” and each of the underwriters agreed to abide the final determination of any such action, so fixing his individual responsibility under this policy. It is admitted that no such action was brought against said attorneys who are named in the policy and who are also underwriters. The defendant, at the close of plaintiff’s testimony, moved to dismiss the complaint upon the ground that action had not been brought against the attorneys for the underwriters as trustees, as provided for in the policy, and that, until such action was brought and judgment recovered thereon and execution returned unsatisfied, no cause of action accrued against the defendant as an underwriter under the policy. This motion was denied and was renewed at the close of the defendant’s testimony and was again denied. Judgment was directed in plaintiff’s favor by the court for $395.99 and due exception was taken by defendant. The answer does not set up as a defense the question just mentioned, and, therefore, the motion for a dismissal of the complaint was properly denied. Such a defense is in the nature of a plea in abatement, which should give the names of the parties omitted and show that they are alive and within the jurisdiction of the court and within reach of its process, and should be full, clear and specific. Ralli v. White, 21 Misc. Rep. 291.

The judgment was a just and fair one and must be affirmed, with costs.

Conlan and O’Dwyer, JJ., concur.

Judgment affirmed, with costs.