(concurring in part and dissenting in part). I agree that Surrogate’s Court lacks jurisdiction to determine alleged violations of the Business Corporation Law and that such claims should be transferred to Trial Term of Supreme Court for ultimate disposition.
I disagree with the majority conclusion that the “book of business” designated “ECU” is the property of Albany Associates, Inc. Since my reasoning on this issue differs from that expressed by Justice Levine, I am compelled to dissent separately.
I am in accord with the principle that this issue can only be resolved by examination of the daily operations of the particular parties (see, Otto v Imperial Cas. & Indem. Co., 277 F2d 889, 895). Here, the record demonstrates that, pursuant to contract, Albany Associates was the agent of the various companies and the sole entity responsible to the insurance companies for the payment of premiums, which were billed in the name of Albany Associates, deposited in its corporate account when received and then paid by corporate check. Corporate expenses, including salaries and commissions, were then paid by Albany Associates and the balance retained as corporate earnings. Erastus Corning, II, J. Otto Fausel and E. Lloyd Rogers, as producers of insurance business in dealing with their respective clients, acted as brokers or subagents of Albany Associates in the day-to-day operations. It was they who were responsible to see that the premiums were paid by the insured to Albany Associates.
The extent of this responsibility is demonstrated by the fact that, on at least one occasion, Corning reimbursed Albany Associates from personal funds for a premium advanced by the general agent on behalf of an insured who had failed to pay the premium due on his policies. Thus, Albany Associates, as the party actually placing the policies of insurance with various *104companies, was the general agent. It necessarily follows that, as between the general agent acting on behalf of Corning, Fausel and Rogers, Albany Associates had no contract with the insured. Consequently, Albany Associates cannot be considered to own or control expirations in any particular policy (Miller Co. v Empire Fire & Mar. Ins. Co., 503 F2d 751, 753, 755). The fact that Fausel and Rogers possessed written contracts with the general agent and Corning did not is immaterial, for the contracts in question were declaratory of their common-law rights with added provisions in the event of death or other separation from their employer. Moreover, the fact that Corning operated as an insurance broker for 51 years, as a sublicensee under the license issued to Albany Associates, does not limit his authority as an “insurance agent” under the authority of established case law and the rules and definitions of the American Agency System (see also, Insurance Law § 2103 [b], [c]).
Therefore, I disagree with the conclusion reached by Surrogate’s Court and would decide that the “book of business” identified as “ECU” was the individual property of Coming’s estate and did not pass to Aurora, Inc., upon the sale to it of the stock of Albany Associates. This conclusion is further supported by the fact that the financial statements of Albany Associates, which formed the basis for the determination of the sale value of its stock, contained no reference to the value of Coming’s expirations. It did, of course, include the value of the expirations contained in the agency “book”, which was separate from the ledger of business maintained by the other three producers, Corning, Fausel and Rogers.
Accordingly, I would reverse the decree of Surrogate’s Court.