#### Zephyrinus A. Lowrey, Respondent, *v.*Andrew J. Bates, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

1. Lloyds insurance — Misjoinder of parties must be pleaded.

A defense of a misjoinder of parties, which depends upon a special condition in the contract of insurance, is waived unless it is pleaded in the answer.

*2.*Same — Authority to attorneys-in-fact to appeal.

A power of attorney to attorneys-in-fact for underwriters under a Lloyds’ policy of insurance authorizing them “ to acknowledge or contest any claim * * * to defend, compromise or settle any suit” brought upon the policy, is broad enough to authorize the attorneys-in-fact to appeal from a judgment rendered against them for a loss.

3. Same — Stipulations which are conditions precedent to a right to collect costs from one underwriter.

Where a Lloyds’ policy of insurance stipulates that suit must be brought against the attorney-in-fact and that a judgment entered in such an action must he satisfied out of unexpended premiums or, if these are insufficient, then out of the deposit of the underwriters, before their individual liability shall he enforceable, an insured person cannot enforce, against an individual underwriter, costs awarded on an appeal, taken by the attorneys-in-fact from a judgment rendered against them in his favor, where he fails to show' that he ever issued an execution on his judgment for costs, or that he has made any attempt to have the unexpended premiums or deposit applied in payment, or that such premiums or deposit do not exist or aro insufficient.

Appeal from a judgment rendered in favor of the plaintiff, in the Municipal Court of the city of ¡New York, borough of Manhattan, for the first district. :

George M. Mackellar, for appellant.

Menken Bros., for respondent.

Leventritt, J.

The plaintiff seeks to recover the costs of appeal, which had been awarded to Mm in an action upon a *408Lloyds’ insurance policy. Pursuant to its provisions lie had instituted suit against the attorneys for the underwriters to establish his claim to damages for loss by fire. The attorneys appealed from the judgment recovered by the plaintiff in that action, and the costs included in the judgment of affirmance constitute the subject-matter of this litigation. The defendant is one of fifteen underwriters; the remaining fourteen were named as defendants in the summons, but none of them were served or appeared. To the complaint, this defendant interposed a general denial.

The entire evidence introduced upon the trial consisted of the policy of insurance, a power of attorney from the defendant to the attorneys, who had been sued in the original action, the judgment-roll therein, the remittitur thereon, and the judgment for the costs in controversy.

The defendant moved to dismiss the complaint upon the three grounds following: First. A misjoinder of parties defendant;

Second. The absence of proof of authority in the attorneys to appeal from the original judgment; and, Third. The omission of the plaintiff to offer proof of any attempt to satisfy the judgment for costs out of certain funds, which, by the provisions of the policy, were made applicable thereto, before resort could be had to the individual liability of the underwriters.

The justice denied the motion and awarded to the plaintiff judgment for the amount claimed.

Where, as in the case at bar, the defense of misjoinder of parties defendant depends upon a special condition in the contract of insurance, it should be pleaded in the answer, otherwise it is deemed "waived. New Jersey *&*Penn. Cons. Works v. Ackermann, 6 App. Div. 540.

The second ground is untenable as the language of the power of attorney is sufficiently comprehensive to authorize the attorneys of the defendant to appeal from the original judgment. It cannot be seriously questioned that the power “ to acknowledge or contest any claim * * * to defend, compromise or settle any suit” brought upon the policy, does not embrace the authority to appeal from, as well as to resist, a judgment in the first instance.

The third ground, however, presents a more serious contention. In the policy it is recited that *“*no action shall be brought by the assured to enforce the provisions of this policy, except against the attorney-in-fact, as representing all of the underwriters * * * . Judgment entered in such an action shall be satisfied *409out of the premiums in the hands of the underwriters, unexpended; if such premiums shall he insufficient, then out of the deposit made by the several underwriters; if both shall be insufficient, then out of the individual liability of the several underwriters, as hereinbefore expressed and limited.”

The plaintiff presented no evidence of the issuance of any execution upon the judgment for costs or of any attempt to have the unexpended premiums or the deposit applied to- its payment, or of the nonexistence or insufficiency o-f such premiums or deposit. The failure of proof in that regard is fatal to the judgment rendered.

The stipulation quoted is a part of the contract to which the plaintiff assented and by which he is bound. The circuitous method, which may have to be adopted, and the difficulties which may be encountered in reaching the funds, to- which he has agreed primarily to resort, cannot militate against the enforcement of a condition, to which he has deliberately assented. Whether the scheme of collection, provided by the contract, could be made fully operative, it is not necessary to consider, since it met with the plaintiff’s concurrence. Gough v. Satterlee, 32 App. Div. 33.

The defendant resisting all liability, did not contend that he was, under the terms of the policy, chargeable with only a *pro rata*share, one-fifteenth, of the amount of the .costs sought to be recovered, and judgment went against him for the whole sum; therefore, the extent of the defendant’s liability, if any, is not now before us for consideration.

The judgment must be reversed, with costs to the appellant to abide the event.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.