(207 N.Y.S.) The insured in that particular case had entered upon the railroad station platform for the purpose of boarding a railroad train leaving that station at 10:28 a. m. for New York City, and was a passenger of the railroad company. When he came upon the station platform a south-bound train was moving out, and the insured reached the train and seized hold of the handlebars or grabirons upon each side of the entrance to one of the cars, and ran alongside of the entrance while boarding the train. But the rapidly increasing speed of the train prevented him from getting on board, and he finally lost his grip on the handlebars or grabirons after running alongside of the train and being carried along by it while holding on to the handlebars for a distance of between 50 and 100 feet, and he fell and was killed by the train. The finding of the court below was that the deceased was killed while traveling as a passenger on the railroad on the day in question, and that the plaintiff was entitled to double indemnity under the policy. We reversed the judgment of the trial court, whose finding was that the death of the assured was caused by accident while traveling as a passenger on a railway train. Of course, the policy under discussion in that case had to do with the payment of double indemnity. But the principle is precisely the same, because the liability of a company for either single or double indemnity is absolutely dependent upon the reading of the insurance contract. In the present case the liability of the defendant corporation only arose in case the assured suffered accident or death "while a passenger in or on a public conveyance, including the platform, steps, or running board thereof, provided by a common carrier for passenger service." There is no basis for the claim in this case on the part of the plaintiff that Mr. Dolge was shot while he was a passenger in or on a public conveyance, including the platform, steps, or running board thereof, provided by a common carrier for passenger service. The proof is entirely to the contrary and when we take that particular clause of the policy, and also the additional provision that the policy itself did not cover any accident not specifically mentioned as above, it seems to me that the plaintiff has no case, and that her complaint must be dismissed. I suggest, therefore, a reversal of the judgment on the law and the facts, with costs, and a dismissal of the plaintiff's complaint, upon the ground, first, that an issue of fact was presented as to where the casualty involved occurred; and, secondly, upon the ground that the complaint does not state facts sufficient to constitute a cause of action in that it appears therefrom that the casualty did not occur while the deceased was "a passenger in or on a public conveyance, including the platform, steps, or running board thereof, provided by a common carrier for passenger service," and therefore was not a risk covered by the policy of insurance issued by the defendant company. All concur. 207 N.Y.S.-4 (123 Misc. Rep. 877) In re STODDARD, Superintendent of Insurance. In re NORSKE LLOYD INS. CO., Limited. (Supreme Court, New York County. November, 1924.) 1. Corporations 686-Appointment of New York receiver for corporation in hands of domiciliary receiver ancillary, and to protect interests of New York creditors. Where foreign corporation is already in hands of domiciliary receiver, New York receiver is ancillary, and is appointed to preserve pendente lite property for protection of interests of New York creditors. 2. Insurance 21-Residence in United States sole test of right to share in fund deposited with state insurance superintendent by insolvent company. Sole test of right to share in distribution of fund deposited by insolvent foreign insurance company with state superintendent of insurance, under Insurance Law, § 27, to secure policy holders in United States, is residence in United States, regardless of where policies were written, in view of section 63 and of history of legislation. In the matter of the application of the People of the State of New York, by Francis R. Stoddard, Jr., as Superintendent of Insurance, for an order to take possession of the property and assets of the Norske Lloyd Insurance Company, Limited. On motion for an order approving and confirming the report of the State Superintendent of Insurance as liquidator. Order in accordance with opinion. Clarence C. Fowler, of New York City, for Stoddard. William H. Hotchkiss, of New York City, for numerous claimants. Bonynge & Barker, of New York City, for British Liquidator. Haight, Smith, Griffin & Deming, of New York City, for Norwegian Liquidator. DONOHUE, J. This motion is for an order approving and confirming the report of the superintendent of insurance of the state of New York, as liquidator of Norske Lloyd Insurance Company, Limited, a Norwegian corporation, and fixing and determining the claims as rendered for allowance or disallowance, authorizing said liquidator to pay in full all allowed claims, and terminating the liability to the extent of such payments made. The liquidator has divided the claims presented to him for payment into the following three classes: (1) Those who are residents of the United States, who dealt with the United States branch of the Norske Lloyd, and whose claims are based upon policies issued by such branch. (2) Those who are residents of the United States, but who dealt with the home office or foreign branches of the Norske Lloyd, and whose policies or certificates of insurance. were issued outside of the United States. (3) Those who are nationals of countries other than the United States, and whose policies. or certificates of insurance cover risks outside of the United States, and were issued outside of the United States. The liquidator has allowed the claims in class 1 and disallowed the claims in classes 2 and 3. No serious question is raised as to his action concerning the claims in classes 1 and 3, the only question in (207 N.Y.S.) volved on this motion being the disposition made of those claims coming in class 2. The fund in the hands of the liquidator is sufficient to pay both classes 1 and 2. Therefore the question of priority or preference existing between these two classes of claimants, if any there be, is not involved nor necessary to be decided on this motion. In making this classification of the claims presented to him for payment, the liquidator has applied as his basic test, "Was the contract made in or outside of the United States?" and in the use of this test he is vigorously supported by counsel for the Norwegian and British liquidators. If this classification be approved by the court, the practical effect will be that, after the payment of claims coming under class 1, the fund in the hands of the liquidator would be transmitted to foreign liquidators for their distribution. The Norske Lloyd Insurance Company, Limited, was organized in 1905, under the laws of the kingdom of Norway, and in January, 1916, it was authorized to do a fire and marine insurance business in New York. Pursuant to section 27 of the Insurance Law (as added by Laws 1919, c. 382, § 2), before receiving the statutory authorization, it deposited $400,000 of securities with the insurance department, which securities were registered, "Superintendent of Insurance of the State of New York, in trust for Norske Lloyd Insurance Company, Limited, of Christiana, Norway, for the protection of its policy holders in the United States," and also executed a deed of trust to the Guaranty Trust Company of New York, dated July 23, 1915, containing the following clause: "Second. The trustees and its successors shall hold the above mentioned property and its proceeds as a fund in trust, out of the proceeds and avails thereof in its hands to pay, or cause to be paid, all lawful and valid claims or demands of policy holders or creditors in the United States of the company, or such pro rata share of such claims and demands as may be possibly paid therewith." Section 45 of the Insurance Law (as amended by Laws 1920, c. 426, and Laws 1923, c. 443, § 4) then provided that the company should render annual reports to the superintendent of insurance as to the business done and assets held by or for it in the United States, for the protection of all policy holders residing within the United States. Upon receiving the statutory authorization the Norske Lloyd Insurance Company, Limited, opened in New York a branch office and commenced the transaction of its business, both in New York and other parts of the United States, making a deposit of $100,000 with the treasurer of Ohio as a prerequisite for authorization to do the same kinds of business in Ohio, and continued the transaction of its business in this state and country until December, 1920, when it ceased writing through the American branch marine business. On December 31, 1921, there were no marine policies of insurance in force, except a few builders' risks, which were not renewed. Its business after December 31, 1921, consisted solely of reinsuring fire risks assumed by direct writing insurance companies. All these fire risks were terminated between August 1, 1921, and December 31, 1921, by canceling these re insurance treaties. After December 31, 1921, no fire risks written by the United States branch were in force in this state or country. The company becoming insolvent, it commenced voluntary liquidation in Norway, and its affairs were placed in control of an official board of liquidators. On February 28, 1922, the High Court of Justice in London, England, where the company had a branch office writing insurance, appointed a liquidator of the company's affairs in England, and the British liquidator thereupon became a member of the Norwegian official board of liquidators. On November 17, 1922, the bankruptcy court in Norway adjudicated the Norske Lloyd Insurance Company, Limited, a bankrupt, and appointed an official receiver to take possession of the company's assets and property for distribution among its creditors. On May 3, 1922, upon the application of the New York superintendent of insurance, this court made an order directing the superintendent of insurance forthwith to take possession of the property and conserve the assets in the United States of America of the Norske Lloyd Insurance Company, Limited, of Christiania, Norway, and its United States branches, and retain such possession and conserve such assets until further order of this court, and that the superintendent of insurance and his successors in office ascertain, fix, and determine the lawful and valid claims, debts, and demands of the policy holders and creditors in the United States of America of said Norske Lloyd Insurance Company, Limited, and of the United States branches thereof, and make report thereon to the court with all convenient speed, and pay out of the assets all reasonable and necessary expenses incurred in taking and retaining such assets and in ascertaining, fixing, and determining such claims, debts and demands. On May 3, 1922, pursuant to that order and section 63 of the Insurance Law, the New York superintendent of insurance took possession of the company's assets in the United States, amounting to $1,889,027.23, which on June 16, 1924, had increased to $2,235,733.29, exclusive of the $100,000 deposited with the treasurer of Ohio, who still retains possession thereof. These assets consisted of $203,743.74 deposited for the marine business, $203,328.49 for the fire insurance business, the remainder, the trust fund with the Guaranty Trust Company of New York, and general assets in possession of the marine and fire branches. Claims of $2;586,464.77 have been presented to the state superintendent of insurance. Chapter 308 of the Laws of 1849 appears to be the first statute requiring a foreign insurance corporation as a condition precedent to transacting business in this state to obtain a certificate of authority from the comptroller and issue of such certificate limited upon satisfactory evidence of authorized corporation investment "in the stocks of this state, or the United States, an amount equal to the amount of capital or security required by this act, and such stocks are held in trust by citizens of this state for the benefit and security of such as may effect insurance with him or them." Chapter 466 of the Laws of 1853 elaborated the details of the procedure necessary for a foreign (207 N.Y.S.) insurance company to follow in order to obtain the certificate of authorization, and continued trust "for the benefit and security of such as may effect insurance with him or them." Chapter 366 of the Laws of 1859 transferred the supervision of insurance to the insurance department by that statute created, headed by the superintendent of insurance. Chapter 367 of the Laws of 1862 revised the insurance laws, continuing the capital conditions for the issue of the authorization certificate, and adding a further condition: "And any company incorporated by or organized under any foreign government shall, in addition to the foregoing, deposit with the superintendent of the insurance department for the benefit and security of policy holders residing in the United States, a sum not less than two hundred thousand dollars in stocks of the United States or of the state of New York." This is the first limitation of this trust to "policy holders residing in the United States." Chapter 888 of the Laws of 1871 defined the capital of the foreign corporations authorized to do business in this state as "the aggregate value of such sums or securities as such company shall have on deposit in the insurance and other departments of this state and of the other states of the United States, for the benefit of policy holders in any of such states or in the United States," and certain specified investments, provided such investments are held in trust "for the general benefit and security of all its policy holders and creditors in the United States." The subsequent amendatory statutes have continued the provisions of the trust "for the general benefit and security of all its policy holders in the United States." Section 27 of the Insurance Law, in force in 1917, continued the definition of the foreign insurance companies' capital and was repealed and reenacted in chapter 382 of the Laws of 1919. Certainly the New York superintendent of insurance had no record of policies issued by the foreign insurance companies in other states of the United States, save through the annual January report "of the items making up such capital, and the deductions to be made therefrom" required in section 27 of the Insurance Law. In Lancashire Ins. Co. v. Maxwell, 131 N. Y. 286, 291, 30 N. E. 192, the court, discussing chapter 888 of the Laws of 1871, explained the necessity of defining the "American capital" of a foreign insurance company was because the maximum risk such company could take was 10 per cent. of its capital. Under this definition a part of the American capital of the foreign insurance company consisted of funds deposited with the insurance departments of the various states. of the Union. All these deposits were held in trust for the benefit of American policy holders and creditors. In 1912 the Attorney General of this state (Áttorney General's Report 1912, vol. 2, p. 165), in an opinion held that the deposit required of a foreign insurance company for "the benefit and security of its policy holders in the United States" included policy holders in Porto Rico. The Legislature knew of the Lancashire Ins. Co. v. Maxwell Case, supra, and the Attorney General's opinion, supra, and if the legislative intent had been to limit the deposits in New York for the benefit of residents of the United States |