Bohlinger v. Zanger , 202 Misc. 481 ( 1952 )

Botein, J.

The plaintiff (as liquidator of an insurance company) concedes that the defendant (an insurance broker) has the right to deduct his commission for the period up to May 2, 1951, as of which date liability of the insurer was terminated by the order of April 30, 1951. The only question presented for determination on this motion for judgment on the pleadings is whether the defendant may withhold from the plaintiff any other portion of premiums paid to him by various assureds.

By virtue of the provisions of section 121 of the Insurance Law the defendant, in legal contemplation, acted for the insurance company in receiving payment of premiums. Section 125 of the Insurance Law makes the broker responsible in a fiduciary capacity to his principal for all funds received. His principal, in view of the provisions of section 121 (supra) is the insurance company. It follows that the defendant is not entitled to withhold from the plaintiff, the liquidator of the insurance company, any part of the premiums paid to him as agent for the insurance company except the commissions above referred to. The motion is granted to the extent of awarding judgment to the plaintiff for the amounts withheld, less the defendant’s commissions. The question of the rights of the assureds who paid the premiums as against the plaintiff is not presented for determination by the present motion.