In re Preferred Accident Insurance Co. of New York

(dissenting). I dissent and vote to modify the order entered July 2, 1947. While I concur in the Per Curiam opinion as far as it goes, I believe that the order of substitution should contain a provision requiring that a copy thereof be sent by mail within a specified time to all of the insured. The order entered July 2, 1947, should be modified to contain such a requirement.

Peck, P. J., Glennon, Dore and Van Voorhis, JJ., concur in Per Curiam opinion; Shientag, J., dissents and votes to modify with memorandum.

Order entered July 2, 1947, affirmed with $20 costs and disbursements. Appeal from order entered June 26, 1947, unanimously dismissed.

When the policyholders were sued because of liability for automobile accidents or other form of casualty, they delivered the summonses which had been served upon them to their insurance carriers, calling upon the carriers to provide for the defense of the actions in accordance with the obligation to do so contained in the policies. The policyholders thereby impliedly authorized the insurance companies to act as their agents in obtaining a lawyer or lawyers for them as attorney or attorneys of record in the litigations. Such implied authority included the power to change lawyers for the policyholders, and, in the absence of revocation of the authority to retain or change their attorneys, the respondent insurance companies were empowered to maintain legal proceedings for removal and substitution of attorneys without additional formal or specific consent of the policyholders to the substitution.

It is expressly conceded that termination of the retainer was due to managerial reorganization and does not in any way reflect upon the ability, honesty and reputation of the attorney in question.

On reargument Special Term modified and enlarged the scope of its original order so as to make it applicable to actions pending in all courts where the appellant appeared as attorney of record. That order should be affirmed, with $20 costs and disbursements to the respondents. In view of such affirmance, the appeal from the original order under the circumstances here presented is dismissed as academic.