#### David Mayer, Appellant, *v.*Phœnix Assurance Company, Limited, of London, Defendant, Impleaded with the Home Insurance Company, Respondent.

First Department,

February 7, 1908.

Insurance — adjustment of loss — fraudulent award—parties — joinder of defendants.

A joint action maybe maintained against two fire insurance companies to set aside an award when it is claimed that tlie companies bolding policies in different amounts, joined with the insured in an appraisal of loss, the insured selecting an appraiser to act under both. policies and the companies jointly selecting one, and the two appraisers being unable to agree selected under the terms of the submission an umpire who was induced by improper and illegal practices of the appraiser selected by the companies to join with him in making an unfair and illegal award.

While each defendant, issued a separate policy and was liable only by the terms of its separate contract, both were interested in the common object of reducing the award and in equity it is proper to join as defendants in one action different persons whose independent or joint acts combined to produce the injury.

*242Where an appraisal in behalf of several insurance companies is fraudulently made, one company innocent of the fraud is'not. protected by it because the award is fdr the benefit of all and is vitiated by the fraud of one.

It is proper for the complaint in a suit to set aside such award fixing the amount Of loss under two policies issued by different companies to ask that, if the award be set aside, each defendant be adjudged to pay the loss in proportion to the amount of its policy, as equity having acquired jurisdiction will afford complete relief. ■

Scott, J., dissented..

Appeal by the plaintiff, David Player, from a judgment of the Supreme .Court in favor of the defendant, the Home Insurance Company, entered in the office of the clerk of the county of New York on the Stli day of November, 1907, upon the decision of the court, rendered after a trial at the' New York Special Term, sustaining the said defendant’s demurrer to the complaint.

*Henry H.*Abbott, for the appellant.

*Dickinson W.*Richards, for the respondent.

Houghton, J..:

The action is to set aside an award made by appraisers appointed pursuant to the terms of a standard fire insurance policy to determine the amount of loss by fire.

The complaint alleges that the plaintiff was insured against loss by fire by policies issued by the respondent, Home Insurance Company,. and. defendant Phcenix Assurance Company, Limited, of London, in different amounts, the loss, if any, to be borne proportionately according to the amounts of the respective policies; that a partial loss by fire occurred; that disagreement as to the amount of loss sustained having arisen appraisers were selected, the plaintiff selecting one to, act under both policies, and the two defendant companies selecting the same person to act for both; that the two appraisers being unable to agree, under the terms of the submission selected a third one or umpire; that by reason of improper and illegal practices the appraiser selected by defendants induced the umpire to join with him in making an unfair and illegal award and determination of the loss sustained at an amount much less than it . actually was; that the loss thus ascertained has not been accepted, and that the *a&PmJ fom*wp instead .of gg ij^efl by *243the alleged illegal award. The relief asked is that the award be set "aside and that each defendant be adjudged to pay.its proportionate share of the actual loss.

The defendant Home Insurance Company demurred to the complaint on the ground that causes of action were improperly united, in that the action was brought to set aside an appraisal had under the terms of two separate and distinct policies of insurance, one issued by each defendant, whose interests were distinct and not joint; and on the further ground that the complaint failed to state facts sufficient to constitute a cause of action, which demurrer was sustained:

Until set aside the award was conclusive upon the plaintiff. *(Remington Co.*v. *London Assurance*Corporation, 12 App. Div. 218; *Fleming*v. *Phœnix Assurance*Co., 75 Hun, 530.)

If the award was improperly or fraudulently obtained the plaintiff had,a cause of action against the defendant companies either separately or conjointly to set it aside. We think he could join both defendants in one action for that purpose. While there were two policies of insurance the award was obtained by the joint action of the two companies and not by two separate and distinct appraisals. Both were interested in the common object of diminishing the total loss which -was to be apportioned between the two. One appraiser represented both. His fraud or improper acts inured to the benefit of both in procuring, as is alleged, a grossly inadequate award.

In equity it is proper to join as defendants in one action different persons guilty of independent acts which combine to produce an injury to the plaintiff. *(Warren*v. Parkhurst, 105 App. Div. 239; 186 N. Y. 45.) Much more is it proper to join defendants whose joint act produces the injury. The appraiser who is alleged to have fraudulently and improperly induced the umpire to act with him was the common appraiser of both defendants. Each defendant benefited by his act. While each defendant issued separate policies and was liable only by the terms of its separate contract, both were interested in the common object of reducing the amount of the award.and both benefited by the reduction resulting in plaintiff’s injury. Where an appraisal in behalf of several insurance companies is fraudulently had, one company innocent of the fraud is pot protected by it, because the award is for the benefit of all and *244is vitiated by the fraud of one. *(Kaiser*v. *Hamburg-Bremen Fire Ins. Co.,*59 App. Div. 525; affd., 172 N. Y. 663.)

Nor is the complaint rendered bad because the plaintiff asks that if the award shall be set aside each defendant be adjudged to pay the loss in proportion to the amount of the policy of each. Even if it were possible for plaintiff to bring an action at law and in that action determine the validity of the award, which we do not decide, still it was entirely proper for him, if he saw fit, to bring an action in equity to have it vacated. Equity,thus acquiring jurisdiction of the matter, will render complete 'justice between the parties though it .may require a personal judgment to accomplish it *(Valentine*v. *Richardt,*126 N. Y. 272.)

The main object of the action is to set aside the award. Presumably, the defendants are willing to pay the amount awarded. In .order, however, -that the plaintiff may recover what he claims to be his actual loss lie' must get rid of the award which limits the amount of his recovery. It is true that the ultimate object of plaintiff is to obtain his money; but to do this lie asks that the award be nullified so that he may obtain more than was awarded to him and what he claims is due him. Actions in equity to set aside an award, and if that be done to recover the amount of the "•loss, are not infrequent and have been quite uniformly sustained. *(Schmitt Brothers*v. *Boston Ins. Co.,*82 App. Div. 234; *Strome*v. *London Assurance Corporation,*20 id. 571; *Kaiser*v. *Hamburg Bremen Fire Ins. Co., supra,; New York Mutual Savings Assn.*v. *Manchester Assurance Co.,*94 App. Div. 104; *Bradshaw*v. *Agricultural Ins. Co.,*137 N. Y. 137.)

We are of the opinion that the action was properly brought against both defendants, and that the complaint states a good cause of action, and that the demurrer was improperly sustained.

The interlocutory judgment should be reversed, with .costs, and the demurrer overruled, with costs, with the usual leave to defendant to withdraw its demurrer and answer upon payment of costs.

Ingraham and' Clarke, JJ., concurred; Soott, J., dissented.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs, .