2 N.Y. 477 | NY | 1855
The question presented is whether persons insured, and who have given deposit notes and have thus become members of the corporation, are liable to be assessed "for losses to an amount exceeding the proportion which their premium notes bear to all the premium notes subject to assessment for such losses, where it has happened that the makers of some of the notes are irresponsible. Assessments upon some of the deposit notes held by the company, including those given by the respondents, were made by the directors before the company failed. The respondents and some of the others paid these assessments; but a part of the persons assessed failed to pay, and the company was unable to collect of them. The losses which these assessments were designed to pay consequently remained in part unpaid. When the receiver came to make assessments upon the same notes, he included, as a part of the amount to be raised by the new assessments, the unpaid balance of the former assessments which ought to have been paid by the delinquent members. If the balance cannot thus be reassessed, the claims for losses will fail to be paid in full. The consequences of the failure of the delinquent members must fall either upon those having claims for losses, or upon the solvent members of the corporation, in- proportion to the amount for which each is insured, or, in other words, in proportion to the amounts in which they .are respectively interested in the company. If this were a stock company, and the members were interested in the stock in the same manner in which these parties are interested in the contracts for indemnity against fire, losses which should arise from
Certain other sections of the act were the subject of comment upon the argument. The sixth declares that the remainder of the premium note, deducting the five per cent to be paid down, “ shall.be payable, in part or the whole, at any time when the directors shall deem the same requisite for the payment of losses by fire,” &c. I do not think this
The obligation to contribute among the members of these companies closely resembles that which prevails among several sureties for a common principal. The rule in equity, in such cases, is to divide the whole loss among the solvent sureties. (1 Story's Eq. Juris., § 496.) I am of opinion that the-order of the general term should be reversed and that of the special term affirmed.
Gardiner, Ch. J., Johnson, Crippen, Dean and Marvin, Js., concurred in the foregoing opinion. Ruggles, J., took no part in the decision.
Hand, J., dissented and delivered an opinion in favor of affirming the order made by the general term.
Order of the general term reversed, and that made at special term affirmed.