35 N.Y.S. 612 | N.Y. Sup. Ct. | 1895
The plaintiff, as assignee of the St. Paul German Insurance Company, of St. Paul, Minn., brings this action to recover ■f399 from the defendant, which he, as agent of the assignor, has collected on policies of insurance issued by the company. It ap
The learned counsel for the appellant contends that the plaintiff cannot maintain this action, for the reason that there was no proof given upon the trial of the statute laws of Minnesota under which the assignment was made, and for that reason alone the jury was justified in finding a verdict for the defendant. He also contends that, even if the action could be maintained, the amounts which the defendant paid out for rebates were properly allowed by the court as an offset to the plaintiff’s claim. The defendant, in his answer, admits the incorporation of the insurance company, and that he acted as its agent and issued policies and received the sum of $873.50 for premiums, and he also admits that he received a notice of the assignment before he canceled the policies and paid the rebates for the unearned premiums. He contends, however, that he had no knowledge or information sufficient to form a belief as to whether the insurance company had made an assignment to the plaintiff, as alleged in the complaint. He also sets up a counterclaim of $800.74, for the unearned premiums assigned to him by the holders of said policies. Under the admissions in the answer, the plaintiff was only required to show upon the trial that the insolvent corporation had made a general assignment to him for the benefit of its creditors. That was done by the introduction of an exemplified copy of the deed of assignment, duly authenticated, as required by sections 947 and 952 of the Code of Civil Procedure. The plaintiff, not willing to rest his case upon this evidence and the admissions in the answer, called the defendant as a witness, who testified that, shortly after he received notice of the assignment, he proceeded to call in all outstanding policies which he had issued for the company, and canceled them, and allowed rebates for the unearned premiums, for which he took assignments, and filed them with the assignee as claims against the insolvent corporation.
We have a right to assume, in the absence of proof to the contrary, that the common law prevails in the state of Minnesota. It has been held that, where a party relies upon the fact that some general rule of the common law is in force in another state, he need not give any proof of that fact, for the reason that the court will
This is not an assignment that comes in conflict with the claims of domestic creditors. It is a question between the defendant, who, as agent, has funds in his possession belonging to the assignee, which he refuses to turn over to him because, as he contends, there is no law authorizing the assignee to maintain this action. I am not aware of any rule of public policy that requires the courts of this state to protect him in his unlawful efforts to retain that which does not belong to him. The Minnesota assignment vested in the plaintiff all the personal property belonging to the assignor located in this state, just as effectually as if it was located in the state of Minnesota; and, for the purpose of obtaining possession of it, he is entitled, under the rule of comity between the states, to prosecute such legal proceedings and suits as may be necessary to collect the debts and to recover the trust property. The term “comity,” as defined in Bouvier’s Law Dictionary, is “courtesy; a disposition to accommodate. Courts of justice in one state will, out of comity, enforce the law of another state, when by such enforcement they will not violate their own laws or inflict an injury on some one of their own citizens.” This rule contributes largely to produce friendly intercourse between the states and individuals. It permits them to sue in each other’s courts, and to travel and transact all kinds of business in each other’s territory, when they are not prevented by some positive law of the state.
Judge Denio, in Petersen v. Bank, 32 N. Y. 21, in discussing the rules of comity between the states, says:
“The titles of foreign statutory assignees are recognized and enforced here when they can be without injustice to our own citizens, and without prejudice to the rights of creditors pursuing their remedies here under our statutes; provided, also, that such titles are not in conflict with the laws of public policy of our state.”
The learned counsel for the appellant also contends that this action cannot be maintained for the reason that no proof was given
The appellant’s counterclaim, in my judgment, is not available. His agency was not coupled with any interest. He was in no respect personally obligated to cancel the policies and pay the holders thereof the unearned premiums. His authority to act as agent ceased when the assignment took effect. He knew when he canceled the policies and paid the rebates that the corporation had ceased to exist for the transaction of business. The rule is well settled that the principal in whose behalf the act was done must be in existence at the time the act was performed. The assignment, therefore, which was for the benefit of creditors, operated as a revocation of the agency.
In the case of Fera v. Wickham, 135 N. Y. 229, 31 N. E. 1028, Judge Gray says:
“The right of set-off must attach at the time of the making of the assignment. It cannot arise afterwards, for the reason that the claim in favor of the estate has passed to the assignee, and to allow a set-off would be to the prejudice of other creditors.”
The judgment, therefore, of the county court, reversing the judgment of the municipal court, must be affirmed, with costs against the appellant.
Judgment affirmed, with costs. All concur.
