
    Owen E. Wyatt, Appellant, v. Frank A. McNamee et al., Respondents.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Brokérs — Compensation — Actions — Pleading — Defense of want of authority from insurance department.
    In an action to recover for services in soliciting life insurance, the plaintiff need not allege in Ms complaint that he has procured from the State Superintendent of Insurance the certificate of authority which the statute (Insurance Law, § 91) requires. The want of such certificate is matter of defense to he set up by answer.
    Appeal "by the plaintiff from a judgment of the Municipal Court of the city of New York, thirteenth district, rendered in favor of the defendants upon demurrer to the complaint.
    Louis EL Porter, for appellant.
    Andrew Hamilton, for respondents.
   Bischoff, J.

A demurrer for insufficiency of substance was interposed to this complaint, which contains every element of the statement of a cause of action upon a contract of employment to solicit life insurance; but the demurrer was sustained upon the ground that the plaintiff’s case depended upon his alleging, affirmatively, that he had procured from the State Superintendent of Insurance a certificate of authority, without which, the statute declares, No person shall act as an agent, subagent or broker, in the solicitation or procurement of applications for insurance or for any policy of insurance, for any life insurance corporation doing business in this State ” (Ins. Law, § 91), a violation of this statute being, also, a misdemeanor. Penal Code, § 577c.

Apart from the fact that the complaint does not state that the company for which, as general agents, the defendants employed the plaintiff, was doing business in this State, the demurrer should have been overruled upon the main proposition of law referred to.

The cause of action did not grow out of the statute in question; it existed by virtue of general principles of law ' and the statutes simply restricted the plaintiff’s lawful performance of his contract by requiring him to obtain a certificate from a public officer, attempted performance in disregard of the restriction being a crime.

In Crichton v. Columbia Ins. Co., 81 App. Div. 614, a similar question was presented, involving the necessity of the plaintiff’s averment that the company had complied with the Insurance Law, which, in the event of non-compliance, prohibited the plaintiff from soliciting insurance for that company; and the reasoning adopted by the court, in favor of the sufficiency of the complaint, fully covers the case before us.

The court is not to assume that a party has been guilty of a violation of law where the record does not suggest it; and, the complaint being silent upon the subject, the fact of an existing infirmity in the cause of action, though a statutory restriction such as this, must be set up by answer. See also Thompson v. Colonial Assur. Co., 33 Misc. Rep. 37, 60 App. Div. 325.

The judgment must, therefore, be reversed and the demurrer overruled with costs, with leave to the defendants to answer upon payment of all costs within ten days.

Scott and Tbtax, JJ., concur.

Judgment reversed and demurrer overruled with costs, , with leave to the defendants to answer upon payment of all costs within ten days.  