On appeal from the Supreme Court.
For the plaintiff-respondent, Farkas & Samuels (Harold Farkas, of counsel).
For the defendant-appellant, Hannock & Lasser (Morris Weinstein, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a final judgment of the Supreme Court, Essex county, in favor of the plaintiff in a suit brought by him as receiver of an insolvent insurance company against the defendant. The complaint charged that the Union Indemnity Company (the insolvent) had issued a workmen's compensation policy of insurance to the defendant, insuring it against liability for personal injuries sustained by employes. The premium on same was ascertained by charging a certain percentage of the total payroll of the employer. An audit of the books showed the proper charge for premium to be $2,120.35 less the amount of $823.94 which had been paid on account by the assured, leaving a balance of $1,296.41. The second count demanded the sum of $19.94 on account of premium due on another policy of insurance and for these sums the action was brought.
The defendant answering says that nothing is due the plaintiff because the defendant had purchased other policies
of insurance of various kinds from the Union Indemnity Company, had paid the premiums thereon but that said policies were all canceled at the time of the insolvency of the company and that the company, through the cancellation of the policies, became indebted to the defendant in the sum of $516 for the unearned premiums.
A second separate defense sets out that the company had insured the defendant against liability on one of its automobile trucks; that an accident happened on account of which defendant became answerable in damages, arising out of the operation of the said truck and against which the defendant was insured; that suit was brought against this defendant by the injured persons; that the insurance company did not defend the suit, although the action was brought prior to its insolvency, and that the defendant had to engage counsel of its own and pay damages in the sum of $1,400.
A third separate defense asserts that the defendant was also insured by the insolvent company under a policy known as a compensation and employer's liability contract. An action for compensation was started against the defendant by an employe prior to the insolvency of the insurance company; that it failed to defend this action and that the defendant paid an award and expenses amounting to $125.
A fourth separate defense alleges that on April 28th, 1933, after the insolvency of the insurance company, another employe, claiming to have sustained an injury arising out of and in the course of his employment, started an action for compensation for injuries said to have been sustained on October 26th, 1932, which was prior to the insolvency; that the insurance company failed to undertake the defense of or settle the claim for compensation and that the defendant will be required to pay said award and costs in the sum of $300.
A fifth separate defense sets out a claim made by another employe alleging injuries sustained on November 1st, 1932, which was prior to the insolvency of the insurance company and during the period of coverage of an insurance policy purchased from the said company; that the company ...