
    Wales B. Lounsbury, Appellant, v. Franklin Duckrow, Respondent.
    (County Court, Onondaga County,
    January, 1898.)
    1. Action by. insurance agent for premiums — General denial — Right to sue — Implied authority to collect premiums. .
    Where it appears, in an action brought by an insurance agent to recover a premium alleged to be due him, that his company in a foreign state issued to the defendant, through him, a policy which was handed to the defendant by a broker who collected and receipted for the premium and subsequently absconded, the interposition of á general denial puts in issue the right of the plaintiff to sue and ■ aláo raises the question whether the plaintiff, by intrusting the policy to the broker, had not given him implied authority to collect the premium.
    2. Same — Bight of agent to sue.
    An agent cannot, merely as such, sue to collect moneys due his prim cipal and where he proves no assignment nor right of subrogation, his action cannot be maintained. *
    
    Appeal from a judgment from the Municipal Court of the city of Syracuse for $9.70 costs in favor of the defendant.
    This action was brought to recover the premium on an insurance policy. The answer was a denial- and "payment. It appeared, or was assumed upon the trial below; that the plaintiff was the agent in Syracuse for The Germania Fire Insurance Company, of Pitts-burg, Pennsylvania. On December 1, 1896, the plaintiff issued from his office a policy of fire insurance in said company, insuring for the¡ period of one year property belonging to the defendant, the premium charged for such insurance being $25, for which this action was brought. The policy was obtained from the plaintiff by one Walter Irving Chase, an insurance broker. After the delivery to the defendant of the policy by Chase, he collected the premium sued for, giving his receipt therefor, and subsequently absconded. The learned judge who rendered judgment below stated in a memorandum that -the ground upon which judgment was rendered was that the plaintiff was simply an agent and had no right-to sue in his own name to recover a debt due as principal.
    Carley & Turner, for appellant.
    Goodelle & Nottingham (W. F. Hodge, of counsel), for respondent.
   Ross, J.

There is no evidence bringing the plaintiff within the rules permitting an agent to bring an action in his own name. Story on Agency, § 393.

The evidence of the plaintiff shows, or tends to show, a liability upon the part of the defendant to the insurance company, but does not, in any way, by proof of the right to subrogation or by assignment, connect the plaintiff with such right. It is claimed by the plaintiff’s attorneys that, by not specifically pleading that the plaintiff was not the real party in interest, or demurring, that such objection is waived.

I think the right of the plaintiff to ¡recover was challenged in ..every particular by the answer of a “ general denial/’ which, as is stated in one of our text-books, “ requires the plaintiff to prove every fact which is essential to his cause of action. It puts in issue every material, allegation in the complaint, and, therefore, imposes upon the plaintiff the burden of substantiating every part of his case by legal competent evidence. "And the effect of the denial is not confined merely to putting in issue all the facts which are directly alleged in the complaint, for it also puts in issue every application or conclusion of law wdiich arises out of the facts stated therein.” 2 Wait’s Law and Practice, 651.

The provisions of the Code .of Civil Procedure (§§ 498 and 499) requiring the defendant to take advantage of or specifically to plead a defect of parties or, if not so pleaded, declaring that the same is waived, assume, if such objection is not taken, a right of action, in the plaintiff in the capacity or in the form in which it is brought. They do not change the rules of pleading so as to require a specific denial as to each fact constituting plaintiff’s case, wdiich would be no more comprehensive than a general denial, much less do these provisions supply a .defect in proof.'

I also think that the case squarely presented a question of fact for the trial court as to whether the broker was the agent for the insured or the company; whether, from'the course of dealings between the broker and the plaintiff before the transaction in question and intrusting him with the policy, the "broker had not implied authority to collect the premium in this case. At least it cannot be said, as a matter of law, that he did not have such authority. Greenwich Ins. Co. v. U. D. Co., 8 N. Y. St. Repr. 353.

And the trial judge having rendered a judgment in favor of the defendant, is conclusive not. only as to every matter proved but as to every matter embraced in the pleadings. Lorillard v. Clyde, 122 N. Y. 41.

A verdict "settles in favor of the prevailing party every question of fact litigated upon the trial. Wolf v. G. Ins. Co., 43 Barb. 400.

The opinion of the learned judge is no part of the record, and ■is -only valuable as explaining the reasons of the judge for his judgment. Agan v. Hey, 30 Hun, 591; Robinson v. N. Y., L. E. & W. R. R. Co., 64 Hun. 47, 48.

Judgment affirmed, with costs.

Judgment affirmed, with costs.  