
    The New York Board of Fire Underwriters, Plaintiff, v. A. Foster Higgins and Others, Doing Business as Higgins & Cox, Defendants.
    First Department,
    January 8, 1909.
    Insurance — penalty for failure to report to the New York board of fire underwriters — obligation of marine insurers.-
    Agents of an unincorporated marine insurance company issuing policies covering goods and ships while in the harbor of New York and policies which attach to goods from the moment they leave the warehouse until they reach their final destination, and also policies insuring automobiles against fire, etc., aré liable for the statutory penalty created by chapter 846 of the Laws of 1867 for a failure to furnish to the New York board of fife underwriters, incorporated by said statute, a semi-annual report of the aggregate amount of pre-. tníums received for insuring property in said city.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      John S. Sheppard, Jr., for the plaintiff.
    
      William J. Wallace, for the defendants.
   Houghton, J.:

The plaintiff is a domestic corporation organized by virtue of chapter 846 of the Laws of 1867, and its purpose. is to exercise supervision concerning the business of fire insurance in the city of New York. It has the power to require a statement to be.furnished semi-annually by all corporations, associations and persons respecting the aggregate amount of premiums received for insuring property in the city of New York in order to make a ratable assessment to supply funds for the maintenance of its business of supervision.. Amongst other things it maintains a tire patrol organised for the purpose of minimizing loss by fire. In case the corporations, associations and individuals who are required to furnish a statement of the aggregate amount of premiums shall neglect to do so, the act creating the plaintiff provides a forfeiture of fifty dollars and a continuous daily forfeiture thereafter until such statement shall be furnished.

Defendants are attorneys in fact of an unincorporated association known as the “United States Lloyds,” doing business in the city of New York, and they have refused to make such semi-annual statements to the plaintiff on the ground that they are not of the class of insurance companies or associations required so to do.

The principal business of defendants is marine insurance. Some of the ships and cargo which they insure lie for some portion of the jieriod of time covered by their insurance in the harbor of the city of New York. Some of the “Cargo” policies written by the defendants attach the moment the goods leave warehouse or factory and cover continuously until delivered at warehouse .or store at point of filial destination. The defendants also engage in the business of insuring automobiles against various casualties including fire. Insurance against fire is also a risk in all the policies ivritten by the defendants whether on vessel or cargo.

The defendants’ contention is that notwithstanding they insure vessels and cargo against fire, nevertheless their business is wholly marine in character of which fire at sea or in port is a necessary element, and that such incidental insurance as transpires while vessel and • cargo are in New York harbor and while freight is being transported to.arid from the vessel, does not constitute the doing of the business of fire insurance in such city.

It might be unwise to enter upon an extended abstract analysis and interpretation of the various forms of policies issued by the defendants. It is sufficient for this controversy to state that in our opinion some' of them, particularly the automobile policy, insure property within the city of New York against fire, and that the defendants being engaged in such business were bound to make the semi-annual statement of premiums received as provided by the act-under which the .plaintiff is incorporated. Not having rendered such statement it has incurred the forfeitures provided by the act, which forfeitures are stipulated to amount to $1,250.

How the premiums received by the defendants shall be apportioned we do not attempt to state. Whatever' may be said' of the automobile insurance manifestly only a part of the total premiums .received on its marine policies can be claimed to be paid for tlie insurance of property agaiust fire while in the port of the city of Hew York or of cargo while being transported to and from the vessel. The defendants incur some risk, however, in that regard and are entitled to receive and doubtless do receive, benefit through the fire patrol maintained by tlie plaintiff. For such benefit as this may be to the defendants they should pay their proportionate share. As we view the case judgment must be directed for the plaintiff for the amount stipulated, with costs.

Patterson, P. J., and Laughlin, J., concurred ; McLaughlin, J., concurred in result. ' .

Judgment ordered for plaintiff, with costs. Settle order on notice.  