Sacharize Isear, Appellant, v. Russell H. Hoadley and Others, Respondents

Sacharize Isear, Appellant, v. Russell H. Hoadley and Others, Respondents. ■Complaint on a Lloyds insurance policy incorporated in it—an objection of misjoinder of pa/rties is warned unless taken by demurrer or answer. Where the complaint in an action upon a Lloyds policy of fire insurance has the policy annexed thereto and made part thereof by a reference thereto, an objection that the plaintiff has brought his action against all the underwriters instead of a separate action against each underwriter, as required by a condition of the policy, appears upon the face of the complaint and is deemed to be waived unless taken by demurrer or answer. (Code Civ. Proc. § 499.) Appeal by the plaintiff, Sacharize Isear, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury. Abraham I. Spiro, for the appellant. No appearance for the respondents. [MAJORITY — Rumsey, J.:] Rumsey, J.: The action was brought upon what is known as a Lloyds policy of insurance for $2,500. The policy was annexed to the complaint and made a part of it. It was substantially an agreement by the defendants, who were subscribers to it, by which they agreed to insure the separate amounts placed after their names, respectively, and separately, in the same amounts insured the plaintiff’s assignor for the term of one year from the 16th of October, 1894, to the 16th of October, 1895, against loss or damage by fire, to an amount not exceeding $2,500. The complaint contained the other necessary allegations to warrant a recovery. All the subscribers to the policy were joined as defendants in this action. They jointly answered, setting up various defenses. Upon the trial of the action a motion to dismiss the complaint upon the opening was made upon the ground that there was a condition in the policy providing that all the underwriters could be sued separately in separate actions, whereas in this action the plaintiff had joined all the defendants. The motion was granted and the plaintiff’s counsel excepted, and from the judgment entered upon the dismissal of the complaint this appeal is taken. We are quite clear that the dismissal of the complaint upon the ground stated was erroneous. The defendants’ objection to the complaint was that there was a misjoinder of causes of action. This objection appeared on the face of the complaint, but no notice was taken of it by demurrer, as it might have been, nor did the defendants object to the misjoinder by their answer. The Code provides that if that objection is not taken either by demurrer or answer the defendant is deemed to have waived it. (Code Civ. Proc. § 499.) Within that rule it was the duty of the court to have paid no attention to this objection, and it was erroneous to dismiss the complaint because of it. The judgment, therefore, must be reversed and a new trial ordered, 'with costs to the appellant to abide the event of the action, Van Bbunt, P. J., Babbett, Ingeaham and McLaughlin, JJ., ooncurred. Judgment reversed, new trial ordered, costs to appellant to abide event.