
    Louise Knorr, Respondent, v. Andrew J. Bates et al., Appellants.
    (New York Common Pleas
    General Term,
    December, 1895.)
    A stipulation in a contract that a party who breaks it may not be sued is void because repugnant to the obligation assumed by the contract and because ousting the courts of jurisdiction.
    Parties to. a contract may not, without statutory authority, designate a person to be sued for its breach who is nowise liable upon its breach. Knorr v. Bates, 12 Mise. Rep. 395, affirmed.
    Appeal from judgment and order overruling demurrer to complaint.
    The opinion states the case.
    
      Lexow, Macltellar cfe Wells; for appellants.
    
      Oa/rtei1, Hughes <6 Dwight (Arthur O. Pounds, of counsel), for respondent.
   Pbyob, J.

Stating the case in its essential elements only, it is this: The defendant Douglas R. Satterlee, as underwriter on á policy, insured the plaintiff against loss by fire; a loss occurring within the scope of the policy, he is sued as underwriter upon his promise of payment; and he demurs to the complaint as insufficient in substance. The policy, incorporated with the complaint, provides that “ no action shall be brought by the insured to enforce the provisions of this policy except against the attorneys in fact as representing all of the underwriters ; and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder.”

The specific ground of demurrer is that an action against the attorneys in fact was a condition precedent to a right of action against the underwriters.

The provision of the policy, be it observed, is not that no action shall be brought- against the defendant as underwriter until' performance by'the plaintiff .of some condition1 precedent-—the case to which President, ete., v. Pennsylvania Co. 50 N. Y. 250, -and similar adjudications are applicable —• but that in no event shall the defendant -be sued for enforcement of his obligation. True, the defendant agrees to abide by the result of - the action against the attorneys in fact as fixing his individual, responsibility; but of what avail is subli a stipulation? He is not the judgment debtor, and, of course, an execution cannot go against him upon the .judgment against the attorneys. And,as no action maybe brought' against him, his agreement to abide the event of the - suit against the attorneys is .without legal sanction and dependent for performance on his own pleasure." A stipulation against enforcement of an obligation 'by judicial process is, in effect, an exemption from liability on the obligation; and upon principle, as well as-by the adjudged cases, such a- stipulation is void, and no answer to an action- oil" the obligation. 1 Add, Cont. (3d Am. ed.) § 225; Jenldns Cent. Oases, p. 96, pi. 86; Furnivall v. Coombes, 6 Scott N. R. 522; Williams v. Hathaway, L. R. (6 Ch. Div.) 544.

It is urged, however, that provision for enforcing the obligartion is supplied by the suit against the attorneys hi factbut these, attorneys, as such, are not parties or privies to- defendant’s promiseand how can an action be maintained against a stranger to the contract? The attorneys neither made nor broke the promise, and for breach of contract -only the delinquent promisor is,responsible-. Dicey Parties (2d Am. ed.), '223, The case is not of a contract with "an agent for an- undisclosed principal (Meeker, v. Claghorn, 44 N. Y. 349),, but tof a promise by the principal himself. Plainly, therefore, the provision for an action against the attorneys'in fact is nugatory as an expedient for. fulfillment- of the defendant’s obligation, and the plaintiff is still free to enforce Ms right by action against the defendant. •' -

Again, a provision in a- contract that the party breaking it shall.-not be answerable in an action is a stipulation for ousting the courts of jurisdiction, and as such is void upon grounds of public policy. Stephenson v. Ins. Co., 54 Maine, 70 ; Insurance Co. v. Morse, 20 Wall. 445, 451; 13 Am. Rep. 298, note; 25 id. 104, note; Prince, etc., Co. v. Lehmann, 5 L. R. Ann. 464; Nute v. Hamilton, etc., Ins. Co., 6 Gray, 174; Scott v. Avery, 5 H. L. Cas. 811, 847; Sanford v. Commercial, etc., Assn., 86 Hun, 380, 383; 147 N. Y. 326; 1 Add. Cont. (3d Am. ed.) § 258.

The defendant is not supported in his position by section 449 of- the Code, which allows the trustee to sue, hut does not suffer him to be sued; nor by section 1919, because it is not apparent that here is any such association or liability as the statute contemplates. McCabe v. Goodfellow, 133 N. Y. 89; Georgeson v. Caffrey, 24 N. Y. Supp. 971. Who shall be defendant in an action the law prescribes. And it is not competent to parties, by private convention, to supersede the legal provision. Sanford v. Association, 86 Hun, 380, 383; Evans v. Hooper, L. R. (1 Q. B. Div.) 45 ; Gray v. Pearson, L. R. (5 C. P.) 568; Hybart v. Parker, 4 C. B. (N. S.) 209.'

Judgment .and order affirmed, with leave to answer on pay-' ment of costs. •

Daly, Ch. J., and Bookstavbr, J., concur.

Judgment and order affirmed, with leave to answer on payment of costs.  