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By a receiver of an insurance company on a premium or
SUPREME COURT-CHENANGO COUNTY,
Justus White, Receiver of The Union Insu
Justus White, who hath been duly appointed receiver, by the Supreme Court of the State of New York, of the
"I am indebted to HENRY R. Mygatt, Esq., of Oxford, for a copy of this precedent. It is like the complaints in the cases of Hyde v. Beardsley and Hyde v. Marvin, referred to in Van Buren v. Chenango County Mutual Insurance Company (12 Barb., 674); and though there are shorter precedents sometimes used, yet this is regarded by the counsel who prepared it as preferable, inasmuch as it has been several times sustained at General Term. It should be added that no demurrer was interposed to this complaint, but the defence was taken by answer, which, on account of its great length, it has been found inconvenient to insert in this volume. The plaintiff put in a demurrer (a copy of which will be found, post, part 6, under the head of "Demurrers"), and had judgment both at Special and General Term, thus substantially sustaining the complaint. That judgment was affirmed at the last term of the Court of Appeals, held December, 1857.
In Hurlbut, assignee, &c., v. Root (12 How., 511), it is held that in an action by an assignee of a mutual fire insurance company, on a premium note, payable in such portions and at such times as the directors of the company may, agreeably to their charter and by law, require, alleging that the plaintiff, as assignee and trustee of the property and effects of the company, ascertained the losses and expenses, and settled and determined the sums to be paid by the members liable to contribute, as their respective proportions of such
stock, property, things in action and effects of The Union Insurance Company, plaintiff in this action, complains of Storm R. Haight, defendant in this action, for that the said The Union Insurance Company was a mutual insurance company, with the name of The Union Mutual Insurance Company of Fort Plain, duly formed and incorporated by virtue of an act of the Legislature of the State of New York, entitled “An act to provide for the incorporation of insurance companies,” passed April 10, 1849, and said corporation was duly organized under said act, in the year 1850, to make insurance on dwellings, houses, stores, and all kinds of buildings and other property, against loss or damage by fire, and otherwise, as allowed in
losses and expenses, without avering that the directors made, or caused to be made, an assessment on the note, is bad in demurrer; and that a voluntary assignee could not make a valid assessment on such a note.
By the act of 1852 (chap. 71), receivers of the effects of such companies are authorized to make assessments. And by the act of 1854 (chap, 224), when an insurance company shall have made an assignment in trust for creditors, and the trust for any cause shall have become vested in the court, it is declared that the person appointed by the court to execute the trust, in addition to other powers and authorities, shall have the power and authority conferred on receivers by the act of 1852.
The Supreme Court of the fourth district has decided, at General Term, that an assessment by the receiver is absolutely necessary to constitute a cause of action on such a note; and a complaint, to be sufficient, must contain such an allegation. The case has gone to the Court of Appeals.
In Bangs, receiver, v. McIntosh (23 Barb., 591), it is held that when an assessment is made by a receiver of a mutual insurance company upon its premium notes, it is not complete and consummated until it is ascertained, fixed and determined, by carrying out upon the extension book the amount which each member is to pay. And that the notice of such assessment, if published before this is done, is premature.
subdivision 2 of section 1 of the act last aforesaid, and subject to the other provisions of the said act; and policies of insurance were issued by said company upon the conditions allowed by said act, and said company carried on and conducted its busisess under said act, at Fort Plain, in the county of Montgomery, from the time of the formation and incorporation of the said company, under the said act, until on the 8th day of July, 1851, an act passed the Legislature of the State of New-York, entitled “An act to amend the charter of The Union Mutual Insurance Company at Fort Plain," whereby the name of the said The Union Mutual Insurance Company at Fort Plain was amended, so as thereafter to be called and known as The Union Insurance Company, and said company continued to carry on and conduct its business under said act, passed April 10, 1849, and the act amending the charter of said company, passed July 8, 1851, from and after the said 8th day of July, 1851, until on or about the 6th day of June, 1853, when, at a special term of the Supreme Court, held at the court-house in the county of Saratoga, on due notice, this plaintiff was appointed receiver of the stock, property, things in action and effects of the said company.
And the plaintiff further shows, that after the said 6th day of June, 1853, and prior to the 28th day of June, 1853, the said plaintiff gave the requisite security as said receiver, and filed the same in the clerk's office of the said county of Montgomery, and entered upon the duties of his office as such receiver, and is now, as said receiver, in possession of the stock, property, things in action and effects of the said corporation.'
'To recover as receiver, it is necessary to allege in legal form that the plaintiff was appointed receiver of the property and effects of the corporation. The time, place and manner of the appointment are traversable facts and should be stated. ( White, receiver, v. Joy, 11
And this plaintiff further shows, that at a Special Term of the Supreme Court, held at the Capitol in the city of Albany, on the 28th day of June, 1853, it was ordered and adjudged by said court that the said corporation, the said The Union Insurance Company, had become insolvent and unable to pay its debts, and had forfeited its corporate rights and privileges ; and by judgment of said court, said corporation was perpetually enjoined and restrained from exercising any of the corporate rights, privileges and franchises of the said corporation, The Union Insurance Company, and from collecting or receiving any debts or demands, and from paying out or in any way transferring or delivering any of the property or effects of the said corporation; and the stock, property, things in action, claims, funds and effects of the said The Union Insurance Company were by said judgment sequestrated, and this plaintiff was confirmed in his said office and trust as receiver, to take charge of the property and effects of the said corporation, and to collect, sue for and recover the debts and demands that may be due and the property that may belong to said corporation, with the power and authority conferred, and subject to all the duties and obligations imposed in and by article 3d, title 4 of chapter 8 of part 3d of the Revised Statutes. And the said plaintiff did by order of the said court, made at the court-house in Schoharie county, on the 15th day of May, 1854, settle and determine the sum to be paid by the several members of the said company on their premium notes (deposit notes meaning), as their respective portions for the losses and liabilities of said company.
How., 36; same case, 3 Ker., 86, per Denio, J.) And if issue is taken upon the allegation, the plaintiff is bound to prove that he was duly appointed. (Bangs, receiver, etc., v. McIntosh, 23 Barb.,
And the said defendant, as plaintiff believes, made his certain note in writing, commonly called a premium or deposit note, and, at the date in said note mentioned, delivered the said note to the said The Union Mutual Insurance Company, by which said note the said defendant promised and agreed with said company in the words and figures following:
For value received, in Policy. 122, dated August 16th, 1850, issued by the Union Mutual Insurance Company at Fort Plain, N. Y., I promise to pay the said company, or their treasurer for the time being, the sum of five hundred dollars, in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation, require.
S. R. HAIGHT.
Which said policy of insurance expired in one year from the date thereof, which said note formed part of the capital stock of said company, and which said policy of insurance was issued and delivered to the said defendant at the date mentioned in the said note, and thereby the said defendant became a member of said company, down to and including the time for which said note was assessed by said plaintiff, as said receiver, to pay the losses and liabilities of said company, incurred whilst said policy and note were in full force and effect.
And the plaintiff further avers, that after he had entered on the duties of his office as said receiver, he ascertained the amount of the losses by fire and other liabilities of said company, and, as said receiver, at Fort Plain aforesaid, on the 20th day of June, 1854, did settle and determine the sums to be paid by the several members of the said company, as their respective portions of such losses and liabilities, in proportion to the unpaid amount