(concurring in part and dissenting in part). I dissent from so much of the majority’s decision as affirms Surrogate’s Court’s determination that the “book of business” marked “ECU” is the property of Albany Associates, Inc., rather than that of the estate of the late Erastus Corning, II. The majority and Surrogate’s Court reason that in the absence of an express contract between the parties, the American Agency System applies, under which, as a matter of custom and usage, ownership of the book of business (more commonly called the expirations) is awarded to the producer of the business, i.e., the agent or subagent who procured the insureds as customers. However, the majority further holds that the producer is only entitled to the expirations if he himself is an independent agent, able to place the insurance with insurers or through general agents other than his own principal. Since concededly Corning was only *105a sublicensee of Albany Associates, deriving all of his legal right to sell insurance in New York through that firm’s corporate license, the majority further reasons that Corning was not an independent agent but was rather merely an employee of the firm. The majority concludes from this that ordinary agency rules apply as between Corning and Albany Associates, under which an agent’s work product is the property of his principal. Hence, Coming’s expirations belonged to Albany Associates, as a matter of law. I respectfully disagree.
To begin with, the majority and Surrogate’s Court ascribe critical significance to the fact that Corning was not independently licensed in New York. In none of the cases relied upon by the majority, however, did the result turn on the license status of the subagent. Indeed, in the leading case of Woodruff v Auto Owners Ins. Co. (300 Mich 54, 1 NW2d 450), followed in Otto v Imperial Cas. & Indem. Co. (277 F2d 889) and Miller Co. v Empire Fire & Mar. Ins. Co. (503 F2d 751), all cited by the majority, the court held that one Keyser, characterized as a biscuit company salesman who “as a sideline solicited insurance in the defendant company for plaintiff’s agency”, owned the expirations in the policies he procured. This is hardly descriptive of Keyser’s status as a professional, independent insurance agent, which the majority requires as a condition to applying the American Agency System to Coming’s expirations. Furthermore, there are at least two cases where the agent’s legal authority to write the particular insurance policies in question was derived exclusively from that of its principal, but the agent nevertheless was held to own his expirations (see, Blume v Curson, 447 SW2d 727 [Tex]; Ballagh v Polk-Warren Mut. Ins. Assn., 257 Iowa 1334,136 NW2d 49b]. Just as the subagent did in Blume v Curson {supra, p 730), had Corning during his lifetime terminated his relationship with Albany Associates, he could have availed himself of the property rights he acquired in his expirations by becoming sublicensed with another general agent. If, as I have concluded, the lack of independent licensing of Corning is not preclusive as a matter of law, then whether his arrangement with Albany Associates represented a three-tiered or four-tiered application of the American Agency System becomes a question of fact, dependent upon an examination of the way the parties operated in actual practice (Otto v Imperial Cas. & Indem. Co., supra, p 895).
Second, even if the arrangement between the parties was three-tiered because Corning had no independent license, actual agreements between agents and principals in the insurance industry control over any custom and usage under the American *106Agency System (Otto v Imperial Cas. & Indem. Co., supra; Phillips & Co. v Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 199 F2d 244, cert denied 354 US 906). The parties’ agreement need not be in writing (Garrett v American Family Mut. Ins. Co., 520 SW2d 102, 112 [Mo]). In my view, a triable issue is presented here as to the existence of an implied contract in fact between Corning and Albany Associates under which Corning retained the property rights in his expirations. A contract implied in fact may result as an inference from the facts and circumstances without being formally stated in words, is derived from the presumed intention of the parties as indicated by their conduct, and is just as binding as an express contract arising from declared intention, since there is no distinction between agreements made by words and those made by conduct (Jemzura v Jemzura, 36 NY2d 496, 503-504; Miller v Schloss, 218 NY 400, 406). Numerous circumstances support a contract implied in fact in the instant case, including (1) the very existence of an individual Corning book of business, separate from that of the corporate entity of which he was the sole stockholder; (2) that he received initial and renewal commissions for premiums received on the policies in that account; (3) that Corning and not Albany Associates, separately compensated J. Otto Fausel and E. Lloyd Rogers for servicing his accounts; (4) that Corning reimbursed Albany Associates from personal funds when one of his accounts defaulted in paying a premium advanced by the firm; and (5) that Fausel and Rogers retained their expirations despite similarly operating as sublicensees of Albany Associates. Of further significance, the maintenance of a separate Corning expirations account and all of the foregoing practices with regard thereto apparently existed from the inception of Albany Associates, when there were two other shareholder-principals in the corporation and when it was hardly likely that Corning would have intended not to retain ownership of the business he personally produced. All of this was in place well before Fausel and Rogers became associated with the firm and before the profit-sharing plan was created in 1975, the existence of which the majority cites as an explanation for Coming’s keeping a separate book of business.
In short, there are outstanding issues of fact (1) as to the proper application of the American Agency System to Coming’s expirations under the circumstances of the case which are not conclusively resolved on the basis that he was not licensed individually as an independent agent, and (2) as to whether, under the circumstances and given the history of the party’s practices, there was a contract implied in fact between Albany *107Associates and Corning by virtue of which he retained the ownership of his expirations. I would, therefore, reverse the decree of Surrogate’s Court and remit the matter for trial of these issues.
Casey and Weiss, JJ., concur with Mahoney, P. J.; Kane, J., concurs in part and dissents in part in a separate opinion; Levine, J., concurs in part and dissents in part in a separate opinion.
Decree modified, on the law, without costs, by reversing so much thereof as determined that Surrogate’s Court had jurisdiction over those claims involving violations of the Business Corporation Law; said claims are transferred to Trial Term of Supreme Court, Albany County, for further proceedings relating thereto; and, as so modified, affirmed.