Badger v. Helvetia Swiss Fire Insurance Co. of St. Gall

120 N.Y.S. 161 | N.Y. App. Div. | 1909

Miller, J.:

The defendant is a foreign insurance company organized under the laws of the Republic of Switzerland, having its office in the city of St. Gall, Switzerland, On the 19th day of February, 1896, in compliance with section 30 of the Insurance Law (Gen. Laws, chap. 38; Laws of 1892, chap. 690), it executed and filed in the office- of the Superintendent of Insurance of this State a written appointment of said Superintendent to be its true and lawful attorney in and for this State, upon whom all legal process ■in any action or proceeding against it might be served. On the 31st of October, 1901, it ceased to transact business in this' State, On the 23d of September, 1907, it executed a revocation of -said power of attorney and filed it with the Superintendent of Insurance, who refused to recognize it and returned it to the defendant’s attorneys. They in turn again delivered it to the - Superintendent, and he again returned it to them. The summons in this action was served on the Superintendent of Insurance on. the 1st day of October, 1909 ; the complaint was not served with the summons and ’ the plaintiff did not attempt on this motion to show the nature of his cause’ of action or how it arose. The defendant still has on.deposit with the State Superintendent of Insurance the sum of $200,000, which it deposited pursuant to section 28 of the Insurance Law.

For the sake of clearness it may be well to ■ quote the material parts of the two’ sections of the statute applicable to this case. “§ 28. Special deposit required in certain eases.— No, insurance corporation, incorporated by or existing under the government or laws of other countries than the United States, except co-operative life and fraternal beneficiary insurance corporations, shall transact any business of insurance in this State, unless, if it transact fire or marine insurance business in this State, it has deposited with the Superintendent of Insurance, for the benefit and security of its policyholders in the United States, a sum not less than two hundred thousand dollars invested as in this chapter required, or if it transact in this State one or more of the kinds of insurance business specified in section seventy of this chapter, it has deposited with the Superintendent of Insurance, for like purposes, such amount as may be required of domestic insurancé corporations doing the same kinds of business.” § 30. Appointment of attorney; removal of cause to Federal courts.— No foreign insurance corporation shall transact any business of insurance in this State until it has executed and filed in the office of the Superintendent of Insurance a written appointment of the superintendent to be the true and lawful attorney of such corporation in and for this State, upon whom all lawful process in any action or proceeding against the corporation may be served with the same effect as if it was a domestic corporation. Service upon such attorney shall thereafter be deemed service upon the corporation.” These provisions are the same in the present Insurance Law (Consol. Laws, chap. 28 [Laws of 1909, chap. 33], §§ 28, 30). As the filing of the written appointment was a condition precedent to the right to transact business in this State, the attempted revocation was doubtless ineffectual as to all persons for whose benefit it was required to be filed. But the defendant had for more than five years before revoking the power of attorney ceased to do business in this State. Its business "was that of fire insurance, and its policies, issued in this State, had expired long before that time. The resolution of its board of directors and the service of notice thereof on the Superintendent of Insurance were effectual to revoke the power of attorney as to all persons, not within the class intended to be benefited by the requirement that said power of attorney be filed. (Hunter v. Mut. Reserve Life Ins. Co., 184 N. Y. 136.) The revocation was not affected by the refusal of thp Superintendent of Insurance to recognize it. As-the defendant showed that it had ceased to do business in this State long before the attempted revocation, the service of the summons’ was a nullity unless, as to the plaintiff, the power of attorney was' irrevocable, and it was'for the plaintiff to show that.

The order should be reversed and the motion granted-.

Burr, Thomas and Rich, JJ., concurred; Jenks, J\, taking no part.

Order reversed, with ten dollars -costs and disbursements, and motion granted, with costs.