I agree that the policy does not by reasonable inference, in view of the actual situation revealed, purport to cover this risk. We reach this conclusion largely, however, by proof of the existence of two fairly separate business undertakings, the creamery located outside of New York city and the distribution of milk in New York city, and by proof of the further fact that the insured had another policy which clearly covered the New York city business alone. In the absence of the latter policy and considering only the fact that the insured had paid on the former policy a premium based upon the inclusion of the New York city employees, we would fairly say that by the conduct of the parties the contract of insurance had been interpreted for us and that the insurance company which had so accepted its premium could not be heard to contend that it was not bound to fulfill its part of the implied agreement. It was not until the carrier discovered the existence of another policy specifically covering that risk that it sought to limit the scope of its coverage. That was long after it had made a premium audit covering the New York city employees and had been paid the deferred balance of the premium upon that payroll and after it had itself paid compensation to this claimant for oven a year. I cannot escape the conclusion that the appellant is now estopped from raising the question of coverage. There is no reason why any such question of coverage should be permitted to be raised at this late day by the employer, who, having paid his premium on this policy upon the basis of a coverage of the New York end of his business, had refused to pay to the other company a supplemental premium based on the same payroll. By this latter act on his part he confirmed the former act and gave his assent to the broad interpretation of the policy of the appellant carrier, which the latter had adopted. The idea which the insured employer had was that he would be unnecessarily duplicating his insurance. Of course it would be an unnecessary duplication, but he was bound, under his contract whereby he took the special New York city insurance, to pay to the insurance company the balance of the premium, the payment of which, by the terms of his contract and the law, was deferred to the end of the year, when his payroll for the year was capable of audit. He had had the coverage and he was bound to pay and by the same reasoning the insurance *622company which had supplied the policy was bound to meet its obligations to the injured employee, the policy having been in force, uncanceled, at the time of the accident, and the obligation having accrued prior to any breach of the contract by the employer which would have permitted cancellation.
We are not concerned with the question of the payment of the premium due to the Commercial Casualty Company, which had the New York city policy. It has its right of action to enforce that payment. We are only interested in the payment of this award and that involves as a necessary incident the determination of the question of who is to pay it. The employer, if not insured in the State fund, is liable for the payment of it unless it is paid by his insurance carrier or carriers. (Workmen’s Compensation Law, § 53.) But the law also provides for the right of the Commissioner to enforce the liability of the insurance carrier in whole or in part for the payment of the award by requiring such a provision to be inserted in the insurance policy. (Workmen’s Compensation Law, § 54, subd. 1.) The payment in whole or in part of such compensation by either the employer or the insurance carrier shall to the extent thereof be a bar to the recovery against the other of the amount so paid. (Id.) It is also provided in subdivision 2 of section 54 of the Workmen’s Compensation Law that such policy shall contain a provision that jurisdiction of the employer shall be jurisdiction of the carrier and that the carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation. So it is plain that the law has conferred jurisdiction upon the Commissioner to bind the insurance carrier. If there are two carriers, as in this case, I see no reason why it is not the right and duty of the Commissioner to make both of them parties and to require them to pay the award as coinsurers. (Matter of Skoczlois v. Vinocour, 221 N. Y. 276, 282.)
I agree that the award should be reversed and the claim remitted but with instructions to make the awards against both carriers except in so far as the awards had been paid prior to discovery of the other policy. Since the latter time, the appellant carrier has paid compensation with the understanding that it is without prejudice to its rights upon this appeal. For the reasons herein expressed, I dissent from the conclusion reached by the majority of the court.
Award reversed and matter remitted to the State Industrial Board to proceed in accordance with the opinion herein, with costs against the. State Industrial Board.