
    The Locomobile Company of America, Appellant, v. Edwin Nichols, Respondent.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    Automobiles — destruction of, in railway accident — claim for damages — insurance companies.
    Where plaintiff, after two of its automobiles insured against loss or injury were destroyed in a railway accident, agreed with the insurance company to prosecute its claim for damages against the railway company, defendant employed by the insurance company to collect said claim is not entitled to retain any compensation for services from the amount received by him on the collection of the claim as against plaintiff.
    Appeal by plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the close of the plaintiff’s case.
    Niles & Johnson (William W. Niles, of counsel), for appellant.
    Tipple & Plitt (Arthur W. Clement and Wilson E. Tipple, of counsel), for respondent.
   Bijur, J.

It appears that plaintiff was the owner of two automobiles which were destroyed by an accident on the International and Great Northern Railroad Company in 1908. Prior thereto the Columbia Insurance Company had insured plaintiff against loss or injury to said automobiles. After the accident the plaintiff and the insurance company entered into an agreement expressed in a letter of the plaintiff to the insurance company reading as follows;

" Dear Sirs.— In consideration of your advancing to us the sum of Twenty-one hundred thirty-nine and 00/100 Dollars $2139.00 as a loan to be repaid without interest as recovery may be effected from the carriers in respect of the undemoted merchandise, we hereby agree to put forward a claim against the carriers and, or bailees of the said merchandise in whose hands the same received damage and upon receiving payment from them we hereby undertake to refund you whatever is recovered up to the amount of this loan $2139.00. All over this amount to be retained by us.
" It is further understood and agreed that you are to be responsible for all costs, attorney’s fees and expenses incurred in connection with the claim.
" Tours faithfully,
" The Locomobile Company of America,
“ Treasurer.
" Description of goods referred to above.
2 Autos in wreck of Int’l & Gt. Northern R. R.”

Thereupon the insurance company employed the defendant to collect plaintiff’s claim against the railroad company, which he succeeded in doing, receiving therefor the check of the railroad company for $3,553 and interest, amounting in all to $4,087.14. Defendant undertook to distribute this amount according to his own interpretation of the letter above quoted, paying the insurance company $2,139, plaintiff $1,219.93 and retaining for his own services $533.40. Against this plaintiff protested and has brought this action to recover the balance claimed to be due to it. Substantially the controversy centers about the right of the defendant to retain as against the plaintiff any compensation for his services

It was urged below, and apparently the learned trial court was of opinion, that upon the facts disclosed plaintiff conld not maintain an action as for money had and received. In this I think the learned court was in error. The agreement between the plaintiff and the insurance company was in substance that, for purposes which we need not examine, plaintiff agreed to prosecute its claim against the railroad company for the damages suffered. Defendant was employed by the insurance company and not by the plaintiff, and, as the evidence discloses, was thoroughly aware of the fact that the claim was plaintiff’s claim and that the moneys to be recovered were the moneys of the plaintiff. As these moneys are in his possession, plaintiff is, of course, entitled to recover them from him. The dismissal of the complaint was, therefore, erroneous. The question whether defendant is entitled to retain any compensation for his services as against plaintiff was not directly decided, because of the dismissal of the complaint. It is quite evident, however, that defendant’s claim for compensation must be directed to the one who employed him.

Lehman and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  