
    Susan W. Bryan, App’lt, v. Abram Viele, impleaded with Cornelia K. Viele, his wife, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Insurance—Fire—Premiums—Agent not liable for unearned.
    Plaintiff gave a note for the premiums of certain policies of fire insurance to defendant, who was the agent, and afterward delivered up the policies to the agent, demanding that they should be canceled and the unearned premiums returned, or that the loss should be made payable to 0., as trustee, to whom plaintiff had transferred the property. The agent had power to do so, and the policies provided that one or the other should be done, under the state of facts existing. The agent retained the policies- and refused to give them up on request. The defendant paid the note and obtained judgment against plaintiff for the amount which plaintiff asks to have satisfied. Leld, that she had no cause of action against the insurance agent, and the complaint was properly dismissed on demurrer. The insurance companies are alone responsible.
    Appeal from a final judgment entered upon an order made at a special term, Orange county, sustaining a demurrer on an amended complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The important allegations in the complaint are: The defendant, Abram Viele, an insurance agent, issued and delivered to plaintiff several fire insurance policies, and for a portion of the premiums thereon the plaintiff made and delivered to the defendant, Abram Viele, her promissory-note, payable to his order. That before the maturity of this note the plaintiff assigned and transfered her right, title and interest in the said subject of insurance, or the principal part thereof, together with the said policies, unto Henry J. Cullen, Jr., trustee, and afterward the plaintiff and Cullen delivered the policies to said Viele and requested him to note the transfer or cancel the policies, and return the unearned premium, which the agent, Viele, refused to do.
    That after such assignment, and at or about the time of the agent’s refusal to comply with the request as to the policies, the plaintiff sent to said Viele a renewal note and the interest upon the original, which renewal note said Viele refused to accept, but did not return. The complaint also alleges that after the maturity of the renewal note the Commercial National Bank of Saratoga Springs brought an action upon it against this plaintiff as the maker and said Viele as the endorser, and afterward entered a judgment therein, which judgment the said Abram Viele claimed to have paid the bank and have had assigned to his wife.
    The complaint asks to have this judgment satisfied of record on the ground that the plaintiff was injured by the refusal of Agent Viele to comply with her and Mr. Cullen’s request, and that the notes were without cons'deration.
    
      Wingate & Cullen, for app’lt; Elias H. Peters, for resp’t.
   Barnard, P. J.

No cause of action is set forth in the complaint. The defendant demurring is an insurance agent. As such he issued certain policies to the plaintiff. A note was given to the agent, I presume as an individual, for the amount of the premiums. This note was renewed in some way, and was unpaid. The note had been put in judgment by a bank which had discounted it before it was due. Before this first note became due, the plaintiff assigned the subject of the insurance or the principal part thereof to Henry I. Cullen, Jr., as trustee. The plaintiff and Cullen delivered up the policies to the agent, and demanded that the policies be cancelled and the premiums returned or that the corporation issuing ¿he policies should make the loss payable to said Cullen as trustee.

The agent had the power to do either act, and the policies provided that one or the other should be done.

The defendant, Viele, retains the policies and refuses to give them up on request.

The plaintiff has no right to the action against Viele. The first note was given for a good consideration. The second was a substitute for it. The corporations were bound to perform their agreement, and are alone responsible if they do not. If Viele endorsed the note first given and the renewal note, he simply in legal effect lent his individual credit to the plaintiff to borrow money to pay his debt.

There is, therefore, no basis upon which to correct the judgment which he paid upon recovery upon a debt as to which he was plaintiff’s surety.

The judgment should be affirmed, with costs.

Pratt and Dykman, JJ., concur.

Pratt, J.

The first note given by defendant was made for a good consideration.

Defendant does not allege that any agreement existed by which upon a transfer of the insured property she should be entitled to a repayment of the unearned premiums. Nor does she allege that Viele ever received any of the unearned premiums or in any way profited by the cancellation of the policies.

For all that appears Viele may have paid to the company and they may yet retain the whole sum "for which judgment was recovered against defendant.

Furthermore, by her assignment of the policies to Mr, Cullen, any supposed right to recover the unearned premiums was vested in him.

The second, or renewal note, is the only one upon which a-recovery has been sought.

Whatever Viele may have said as to his willingness to accept the renewal note, it is plain that it was in fact accepted.

The decisions below were right, and the judgment should he affirmed, with costs.  