#### Leonard C. Ketchum, Respondent, *v.*Milo M. Belding, Jr., Appellant.

(Supreme Court, Appellate Term,

October, 1900.)

Lloyds insurance — Conditions precedent to suit against underwriters — Proof — Pleading as a defence.

Provisions in a Lloyds insurance policy requiring that, before the underwriters can be sued thereon, suit must be brought against their attorneys in fact and be prosecuted until execution against the trust funds in the hands of the said attorneys has been returned unsatisfied, are conditions precedent to any liability upon the part of the underwriters, and, therefore, *a*where the insured makes no proof of the performance of said conditions, in an action against the underwriters, his complaint must be dismissed although they have not pleaded the non-performance of said conditions as a defence.

Ketchum v. Belding, 31 Misc. Rep. 498, reversed.

Appeal from judgment and order of the General Term of the City Court of the city of New York, affirming a judgment rendered at Trial Term.

Donald McLean and Albert Ritchie, for respondent.

Lexow, Mackellar *&*Wells (Clarence Lexow and George M. Mackellar, of counsel), for appellant.

O’Gorman, J.

This action is brought upon a Lloyds insurance policy, issued in behalf of fifteen underwriters by their attorneys in fact. The plaintiff sues the defendant, one of the underwriters, for his proportionate amount of the alleged loss, *507without having first sued the attorneys in fact, as required by the terms of the policy. Under its provisions no cause of action could accrue against the individual underwriters until a suit had first been brought against the attorneys in fact of the underwriters, judgment obtained in such action and execution issued thereon against the trust funds in the hands of such attorneys, and returned unsatisfied. It may be difficult to reconcile all the decisions touching the validity of similar provisions, but-that the performance of these conditions is absolutely necessary in, order to establish a cause of action must now be deemed well settled. Conant v. Jones, 50 App. Div. 336; Lawrence v. Schaefer, 20 id. 80; New Jersey & Pennsylvania Concentrating Works v. Ackermann, 6 id. 540. It is urged, however, that the defense to be available should be affirmatively pleaded. We do not consider this contention well founded. The provisions in question are unquestionably conditions precedent, the liability of the underwriters being expressly dependent upon their observance by the assured. The language employed must be regarded as an express prohibition against the maintenance of the action until performance of the conditions which are essential to the creation of the liability. Reining v. City of Buffalo, 102 N. Y. 308; Porter v. Kingsbury, 5 Hun, 597; 71 N. Y. 588; Rae v. Beach, 76 id. 164; Hirshfeld v. Bopp, 145 id. 84; Lowrey v. Bates, 26 Misc. Rep. 407.

The Appellate Division in Conant v. Jones, *supra,*recognized that the provisions in question are conditions precedent when the court said: “ Strictly speaking, this action is not brought upon the policy to insure, but upon the agreement of the defendant to be bound by the judgment against the attorney in fact.” It is obvious, therefore, that the plaintiff is required to show a compliance with all the terms of the agreement under which he claims a right to recover. This was not done in this case, and it was, therefore, error to refuse to dismiss the complaint upon the trial.

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

Beekman, P. J., and Giegerich, J., concur.

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