
    (79 Misc. Rep. 295.)
    FIRE DEPARTMENT OF VILLAGE OF EAST ROCHESTER v. KAVANAGH et al.
    (Supreme Court, Trial Term, Monroe County.
    February, 1913.)
    Insurance (§ 27*)—Insurance Agents—Penalties.
    Insurance Law (Consol. Laws 1909, c. 28) §§ 133-135, requiring agents of foreign insurance companies effecting insurance to pay a percentage of the commissions for the benefit of the fire department of the village or city, and imposing a penalty for failure to file a bond for such payment, makes no distinction between residents and nonresidents of a locality, and failure to execute and deliver the bond before effecting insurance subjects the agent to an action for the penalty.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 34, 35; Dec. Dig. § 27.*]
    Action by the Fire Department of the Village of East Rochester against John Kavanagh and others. Judgment for plaintiff.
    Charles P. Williams, of Lyons, for plaintiff.
    Hiram Wood, of Rochester, for defendants.
   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 [Consol. Laws 1909, c. 28] "§ 49).

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, 133 N. Y. Supp. 539.

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.  