
    Jacob Rosenbloom, Respondent, v. Maryland Casualty Company, Appellant.
    First Department,
    November 8, 1912.
    Insurance — indemnity against injuries to employees — assumption of defense by insurer — failure to appeal — when surety liable to assured — defect of parties.
    Where one insured against liability for injuries to employees gave notice of an accident to the insurer and when sued delivered the papers to the insurer which undertook the defense without protest or reservation, conducting the trial through its own attorneys without participation by the assured and refused an offer of settlement made by the person injured, and when the insurer did not appeal until the time to do so had expired or call upon the assured to appeal, it is liable to the assured • for the amount paid by him to discharge the judgment.
    An insurer who with full knowledge has undertaken the defense of an action and deprived the assured of any control of it is estopped to deny that the accident was within the terms of the policy.
    Where a defect in parties plaintiff appears upon the face of the complaint, objection should be taken by demurrer.
    Under the circumstances aforesaid the insurer cannot object that there has been no adjudication by a court of last resort, as it neglected to appeal.
    
      Appeal by the defendant, the Maryland1 Casualty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of November, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      James J. Mahoney, for the appellant.
    
      M. E. Kelley, for the respondent.
   Scott, J.:

There are no disputed questions of fact as was conceded by both parties at the close of the trial when ¿both moved for a direction of a verdict and neither asked that any question be submitted to the jury.

The defendant issued its policy of indemnity insurance to the Apollo Realty Company as owner of a building in course of construction in the city of New York. The realty company afterwards.conveyed the premises to plaintiff and two other persons and at the same time assigned and actually delivered the policy to its grantees with the consent of the defendant, which was indorsed in writing upon the policy. The erection of the building proceeded by several general contractors so that no one contractor was in charge of the whole work, the premises remaining in the general possession and control of the owners. On June 11, 1906,' one Julius Goldstein, in the employ of one of the contractors, fell through the iron beams on the fourth floor to the ground below, sustaining injuries. He sued the owners for damages upon the ground that they had failed to perform the statutory duty of planking over the floors. His complaint set forth clearly the grounds upon which he sought to hold the owners liable.

Notice of the accident was given to defendant as soon as the assured heard of it, and when the action was commenced the papers were delivered to defendant, which undertook the defense without protest or reservation. It drew an answer by its own attorney, prepared the case for trial, subpoenaed the witnesses and tried the case without inviting the assured to participate in the defense. Indeed it refused to consent that the action should be compromised and settled, as it could have been at one time, for a comparatively insignificant sum. The action resulted in a verdict for the plaintiff for $1,500. After the trial the assured and the attorney for the insurer had negotiations concerning an appeal. The defendant did not appeal and did not definitely decline to do so until the time to appeal had expired, nor did it notify the assured that they must appeal themselves if they desired the judgment to be appealed against. The result was that plaintiff was ultimately obliged to pay the judgment and now sues to recover the amount paid.

The defense mainly relied upon is that the injury for which Goldstein recovered judgment was not a liability .insured , against by the terms of the policy. Whether it was or not is perhaps open to question, but that question we are not called upon to consider. As has already been said the complaint in the Goldstein case disclosed precisely the nature of his claim and the ground upon which he sought to hold the owners liable, so that when the defendant assumed the defense of the action it had every means of ascertaining whether or not the loss was one for which it was liable under its policy. It is perfectly well settled that under such circumstances, an insurer who has, with full knowledge, undertaken the defense of an action, and deprived the assured of any control of it, will be deemed estopped to deny that the accident was within the terms of the policy. (Glens Falls Cement Co. v. Travelers’ Ins. Co., 11 App. Div. 411; affd., 162 N. Y. 399; Brassil v. Maryland Casualty Co., 147 App. Div. 815; Royle Mining Co. v. Fidelity & Casualty Co., 126 Mo. App. 104; Fairbanks Canning Co. v. London Guaranty & Accident Co., 154 Mo. App. 327; Tozer v. Ocean Accident & Guarantee Corp., 94 Minn. 478; Globe Nav. Co. v. Maryland Casualty Co., 39 Wash. 299.) As this court pointed out in Brassil v. Maryland Casualty Co. (supra) the position of añ insurer who denies its liability from the first and refuses to defend, is quite different from that of one who elects to defend and thus ousts the assured from any opportunity to defend himself. The other grounds upon which a reversal is asked do not commend themselves to our judgment and require no extended comment. If there was a defect of parties plaintiff, that fact appeared on the face of the complaint and the objection should have been taken.by demurrer. .(Sullivan v. New York & R. C. Co., 119 N. Y. 856.) The objection that there has been no adjudication by a court of last, resort can hardly be seriously urged when it was the defendant itself that neglected to appeal.

The judgment and order must be affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order affirmed, with costs.  