(dissenting):
Action upon a policy of fire insurance issued by the “ Isthmus Lloyds of the City of Hew York,” an unincorporated association of underwriters, of which the defendant is one.
The complaint charges’ that under the policy, which was issued by the defendant as attorney in fact of the association, the underwriters insured plaintiff severally, and not . jointly, in the sum of $2,500; that there was other insurance on the property destroyed, aggregating $248,8i6.42; that a loss of $291,994.24 was sustained. while the policies were in force; that such loss was duly appraised and apportioned among the companies insuring the property, and that the proportionate share of the loss chargeable to the Isthmus Lloyds represented by the defendant was the sum of $2,500.
The answer put in issue the loss and. defendant’s liability. Upon the trial the plaintiff proved its ownership of the property, the issuance of the policy sued on, the fire, and then sought to introduce in evidence, for the purpose of proving the loss sustained, a written agreement between it and the defend-, ant, made after the commencement of the action, adjusting the loss and apportioning the liability among the various insurance companies. The agreement was excluded, and the plaintiff then rested, and the complaint was dismissed for failure of proof. ' If this ruling were correct, then the complaint was properly dismissed,-because there was no proof -of the actual loss sustained; if erroneous, then the judgment is wrong, and should be reversed.
*305The agreement was entitled: “ Agreement of Adjustment.” It provided, among other things, that “It is hereby agreed that the claims of the Hammond Packing Company ⅜ ⅜ ⅜ for loss by fire under the following policies of the ⅞ ⅜ ⅞ Isthmus Lloyds of the City of New York, ⅜ ⅜ ⅜ viz.-°
“ Hammond Packing Company.
“Policy Claim.
⅜ ⅜ ⅜
Isthmus Lloyds Inter Insurance 2⅞91 $2500.00 ⅜ ⅜ ⅜ are hereby adjusted at One hundred per cent (100%) of the amount of said claims, subject to the following conditions of payment,” which were stated, and then the agreement continued: “It is further hereby agreed that upon written request from the. attorneys in fact .for the underwriters, the assured shall causé all suits now pending under said policies to be continued from time to time, or to be dismissed, each party paying its own costs, except that this agreement shall not prejudice any of the rights of Hammond Packing Co. ⅜ ⅜ ⅜ to prosecute said suits or institute new ones if such payments are not made as herein specified. * ⅜ ⅜ ”
The policy mentioned in the agreement is the one in suit. The agreement was signed by the plaintiff and the Isthmus Lloyds, “By J. W. Patterson, (seal).” The admission in evidence of the agreement was objected to on two grounds: (1) That Patterson was not shown to have had authority to execute it on behalf of the Isthmus Lloyds; and (2) that it was irrelevant to the issues raised by the pleadings, in that the action was not brought upon the agreement, but upon the policy.
I am of the opinion that the ruling was erroneous. It is admitted in the pleadings that Patterson and the defendant were two of the underwriters who constituted the Isthmus Lloyds; that they were the “general managers of and duly authorized attorneys for and representing ” the association; that they “had full and complete authority from the said underwriters to issue policies of insurance in their names; ” and that they “ acting as the agents and-attorneys in fact of said underwriters, duly entered into .a contract in writing with this plaintiff,” which contract was for the policy sued on.
*306It is further admitted “that the said attorneys of the underwriters have duly designated and appointed William J. Howey as the underwriter against whom suit should be brought in accordance with the terms of said policy.”
From these admissions it appears that the defendant merely stands in the place of the association and that Patterson had power to represent him and the others in adjusting the loss. This necessarily follows, as it seems to me, from the admissions.
As to the second ground: The agreement w;as admissible to show that the amount sued for was the Isthmus Lloyds’ proportionate share of the, loss. The policy is not printed in full in the record — only an abstract being given — but it may be assumed that it was of the standard form and contained the ordinary clauses, including the pro rata clause. Before a recovery could be had the plaintiff was required to prove what proportion of the loss the amount of the plaintiff’s policy bore to the total amount of the other policies and this agreement contained a list of all the policies and their amounts. Being executed by the various companies which had issued policies, it was relevant to an issue to be proved. It was also relevant upon the question of. the amount of the loss sustained under the policy in suit. It was competent as an admission against interest on that subject. In so far as it was an agreement to pay the amount of the claim, it was a general admission of its validity, which covered all the questions which would have to be determined in favor of the plaintiff before it would be entitled to. recover—such, for instance, as the amount of the loss, the giving of due notice, etc. As an admission it was relevant to prove such facts. (Hopkins v. Rogers, 91 N. Y. Supp. 749.)
The statement that the claim was “ adjusted at One hundred per cent ” was but another way of saying that the loss sustained under the policy was the full amount covered by it. (Bartlett v. Tarbox, 1 Keyes, 495.)
The fact that the agreement was not pleaded, was of no importance because the action was not predicated upon it, but upon the policy, and the agreement was offered only as proof of the facts necessary to obtain a recovery under the policy.
The defendant has had the benefit of the agreement by delay*307ing the trial several years, and. having had such benefit ought not to escape liability upon a technicality.
I am of the opinion the judgment should he reversed and a new trial ordered, with costs to appellant to abide event.
Judgment affirmed, with costs.