33 Barb. 627 | N.Y. Sup. Ct. | 1861
By the Court,
The plaintiff brings this action as receiver of an insolvent mutual insurance company, of the name of the “Mohawk Valley Insurance Company.” The complaint alleges that the company was organized under the act of April 10, 1849, (Laws of 1849, ch. 308,) and duly alleges the plaintiff’s title to the note, and his right to bring the action as receiver. " So, also, are duly stated the facts that the note was delivered to the persons who proposed to organize the company; that it became and formed a part of the capital stock at the time of its organization; the issuing of a policy to the defendant referred to in the note, and his thereby becoming a member of the company. Then follows the allegation that the whole amount of the note, with in-¡
•The legal, issues are thus narrowed down to two simple' questions. 1st. Is the answer of the defendant good in form; and 2d. If good in form, can the statute of limitations be pleaded to such a note.
First. By the provisions of the code, (§ 168,) every material allegation contained in this complaint' is. to be taken as true, because the answer makes no denial. We have, therefore, no. .labor to perform in looking after defects in the complaint; none are alleged. I think the complaint is good; all'its material allegations are admitted. The qualities of an answer are also specified, by .§ 149 of the code. Answers that set up no denials; must, by .subdivision 2 of this section, contain “a statejnent of new matter, constituting a defense or counter-claim; in ordinary and concise language, without repetition.” Does this answer, then, contain “a statement of new matter ?” If by new matter, is meant something that has not before appeared—something that is not in the complaint—then the statement “that the action did not accrue within six years next before the commencement of the action,” is new; for although facts are stated in the com
Second. Can the statute of limitations be pleaded to such a note ? This note, it must be assumed, is one of the class which were intended to be used to effect an organization, and supply the place of capital. This class of notes, when identified as belonging.-to that class, are a kind of statute instrument, and have been held to possess somewhat different attributes' of character from ordinary promissory notes. (White v. Haight, 16. N. Y. Rep. 310.) The case just cited" holds,' in- effect, that though such a note, upon its face purports tobe payable in such portions, and at- such time or times,, as the. directors of said company may agreeably'-to the charter and by-laws require, yet the statute under which it ns- given fixes and controls the intent, and the decision: is, that-they-are notes payable-absolutely; that they are. to have-,the effect declared by the statute, .notwithstanding their form. Inasmuch then, as it is safe to say, from the opinion to which we have referred, that notes in the form of the one before us, are.not in the form intended by the statute; that they .are not absolute in form, but should be;; it would b.e 'well that we examine to see what , form they would appear in, if made conformably to the intent and direction of this statute. When the proper form shall be seen, we - can then better determine their true character and qualities,- and more correctly judge whether the - statute of limitations applies to them. A slight examination of § 5, of this statute of 1849, ch. 308, will show that this, as well as most of the vexed ■ questions of litigation, in this regard, almost overwhelming to the courts, is owing to a defect in the first step of the organization, of these mutual insurance companies; a step -which has been almost universally fatal to their prosperity and existence, has spread profitless litigation broadcast throughout the state,” and instead of obeying the professed object of their organization, that of insuring to protect, have
As was said at special term in Bell v. McKercher, (per Bockes, J.) the legal import of this note, in the hands of the receiver, is, that it is an absolute promise to pay the company or bearer $300, at a day not later than at the end of twelve months from the date thereof, which the plaintiff alleges was the 17th June, 1851. We have now, for the purpose of this argument, supposed this note to posesss that . form which the charter demands: we have been shown no act of the legislature declaring it not to be within the statute of limitations. We are then, I suppose, to regard it as we would any other note falling due twelve months after date. We will not stop to discuss the meaning of the term payable. We must presume the legislature used it in its ordinary legal and commercial sense. By the law merchant, “payable” is
.Since the foregoing opinion was prepared, I have been favored with the opinion of the supreme court of the fifth district, in the case of Howland, receiver, v. Edmunds, recently decided by that Court, Allen, J. dissenting;
The argument of that court, in favor of the view that the statute of limitations does not apply to such a note, is, in effect, that it was the intent of the legislature, and the design of the act, to form out of this class of notes, a permanent fund, and a substantial capital, until all liabilities of the company should be met and extinguished.
The statute of limitations, itself, is a general law, expressed in general terms; and applies to all cases that are not expressly, in terms, or by necessary implication, excepted, as follows : “ Civil actions can only be commenced within the periods prescribed by this title, after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute.” (Code, § 74.) It is not claimed, here, that this statute has been repealed, or abrogated by any express provision of any subsequent or other statute. If it is
The rule taken from Dwarris, (supra,) and which received the approbation of the court of appeals in Williams v. Williams, is, that even (C Where the intention of the legislature is not apparent to that purpose, the general words of another and later statute, shall not repeal the particular provisions of the former ones.” So, though statutes may be repealed by implication, and without express words, the leaning of the courts, has ever, here, and in England, been against the doctrine, if it be possible to reconcile the two acts of the legislature together; or, unless in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. (Bowen v. Lease, 5 Hill, 225, 226, and cases cited.) In Thornby v. Dutchess of Hamilton, (10 Mod. Rep. 118,) it was laid down “ that these repeals by implication are things disfavored by law, never allowed of, but where the inconsistency and repugnancy is plain, glaring, and unavoidable. For these repeals carry along with them a tacit reflection upon the legislators, that they should make one act repugnant to, and inconsistent with another.” And in Foster’s case, (supra,) Lord Coke, says: “ That forasmuch as acts of parliament are established with such gravity, wisdom, and universal consent of the whole realm for the advancement of the commonwealth," they ought not by any constrained construction, out of the general and ambiguous words of a subsequent act, to be abrogated.” It is not for the courts to assume that there is any less of gravity, wisdom, or forethought in modern, than in more ancient
These ancient landmarks and monuments of wisdom, to which I have referred, seem to have been quite recently approved by our own highest courts. Against such uniform and clear authority, I can see little force in the argument, that unless we construe these notes to be continuing securities, dealers with these companies would have no security for losses and debts which should accrue during the entire corporate existence of the company. The want of foresight in those who entered upon this novel and untried system of security, or the hardships that may result from want of their having used the proper caution, or even the fact that the legislature omitted to provide a system perfect in its details, does not, in my view, call upon the courts to bend the law, in order to favor legislative defects, or cases of hardship; nor be diverted for this reason, from their especial sphere of duty, by attempting to mingle their legitimate judicial duties of construing statutes, to which they have been assigned, with that of the legislative power of making laws, which belongs to a different department of the governmental power—power which the courts cannot assume. Questions of expediency —of public policy—the justice, or injustice of statutes—• were not intended to be committed to the domain of the courts. The remedy for unwise, defective, or unjust legislation is an appeal to the same sovereign power that occasioned it, to correct the evil. This general insurance statute may be defective; indeed the courts have frequently so held; it may not protect parties dealing with the corporations
Rosehrans, Potter and Bockes, Justices.]
Were it at all our duty, we could suggest a better reason than has been given in the opinion we have reviewed, why these notes should he not held to he continuing securities. The mortality of their makers, as well as their changing responsibility, doubtless suggested to the legislature the necessity of a change of corporators, and a corresponding change of securities as often, at least, as once in six years; hut it is not our duty to look for reasons for the acts of the legislature. We cannot, with these views, concur in that opinion of our brethren of the 5th district.
Judgment affirmed.
Ante, p. 433.