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: $500. 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 of his or their deposit note or notes, agreeably to the charter and by-laws of said company, and did therefor assess the sum so settled and determined upon to be paid by the several members of said company liable to be assessed therefor. And the plaintiff further avers, that after the making of the said assessment, as said receiver, he published notice thereof in the "Mohawk Valley Register," a newspaper published in the county of Montgomery, once in each week for thirty days, commencing on the 6th day of July, 1854; and that previous to the 2d day of August, 1854, he caused notice to be served on each person assessed, of the amount so settled, determined and assessed to be paid by him on his premium or deposit note, requiring said assessment to be paid in thirty days after the service of such notice, by depositing such notice in the post-office at Fort Plain, directed to each person assessed, at his place of residence, as far as such place of residence could be ascertained from the books of said company. And the plaintiff further shows, that at a Special Term of the Supreme Court, held at the court-house in the county of Saratoga, on the 2d day of October, 1854, the aforesaid assessment, so made by said receiver on the premium notes (deposit notes meaning) of the members of said company, was ratified and confirmed, and the said receiver authorized and directed by said court to bring suits against the several members of said company, upon their premium notes (deposit notes meaning), who have refused or neglected to make payment of the amount so assessed by plaintiff to be paid on their respective premium notes (deposit notes meaning). And the plaintiff further avers, that the said defendant's note aforesaid was assessed, for the purpose aforesaid, to the amount of $75, and said assessment was made for losses or damage by fire and expenses accrued to said company only whilst said note and policy of insurance therein mentioned were in full force and effect, which said assessment was made on said 20th day of June, 1854, and thereby the said defendant was required to pay said assessment, of which assessment the said defendant had due notice. And the plaintiff further avers, that after the assessment, made by him as aforesaid, he ascertained that said assessment would not pay the losses and liabilities of said company, and that each and every of the premium or deposit notes of said company, if assessed to the entire amount thereof, would not pay the losses and liabilities of said company, and that the amount chargeable upon each of said notes, by force of the statute, charter and by-laws of said company, was to the entire amount of each of the said notes. And the plaintiff further shows, that at a Special Term of the Supreme Court, held at the court-house at Cooperstown, in the county of Otsego, on the first Tuesday of July, 1856, the said court ordered that the said plaintiff, as said receiver, be and was thereby authorized and directed to assess all the premium notes of said company to the entire amount due on each of them, and file his certificate of assessment in the office of the clerk of the county of Montgomery; and which order further directed, that if default should be made in the payment of said assessment for thirty days after the filing of said certificate in the office of the clerk of the said county of Montgomery, that then the said receiver (the said plaintiff meaning) be authorized and directed to bring suits for the entire balance due on said notes. And the plaintiff further avers, that in pursuance of said order, dated the first Tuesday of July, 1856, he did, on the 31st day of July, 1856, assess all the premium notes of said company to the entire amount due on each and every of said notes, and did make his certificate of the said assessment, which said certificate of assessment he caused to be filed in the office of the clerk of said county of Montgomery on the 13th day of August, 1856, and the said defendant was required to pay said assessment, of which said assessment the said defendant had due notice on said 13th day of August, 1856, yet the said defendant hath neglected to pay the said assessment made by the said receiver as aforesaid, as required by said receiver, by reason whereof, and by force of the act of incorporation, the note aforesaid, the orders of the Supreme Court, and the statute, the said defendant became liable to pay the plaintiff, as receiver as aforesaid, the whole amount unpaid of said note so made and delivered by said defendant, as aforesuid, to said company, and hath not paid the same. Wherefore the plaintiff demands judgment against the defendant for the amount unpaid, being $500, with interest from the 2d day of September, 1854. HENRY R. MYGATT, Attorney for Plaintiff. This is merely the allegation of a legal conclusion, and is not pro perly in the complaint. |