69 N.Y.S. 585 | N.Y. App. Div. | 1901
Lead Opinion
The defendant is a Connecticut corporation authorized to do business in this State under the laws thereof, and which had.issued to the plaintiff’s intestate a policy of insurance upon which this action was brought on the 15th day of July, 1899. On the 7th of July, 1899, in an action pending in the Superior Court for the county of Hartford, in the State of Connecticut, against the National Life Association, Frederick A. Betts was appointed receiver and a judgment was entered dissolving the corporation. On the. 28th of July, 1899, an action was begun in this State by one Albert Freeman against the National Life Association for the purpose of procuring the appointment of an ancillary receiver to take possession of the assets of the association in this State, and to administer them. . In that action Betts was appointed ancillary receiver, and he thereupon made this motion in this action to vacate the writ of attachment and the judgment which had been obtained by default, basing his right to do so upon the fact that he represented the dissolved corporation as receiver. The motion was denied, and from the order denying it this appeal is taken.
It is claimed by the appellant here that as the Connecticut corporation was dissolved by the judgment of a court of competent jurisdiction in that State before this action was brought, no action can be maintained against it, and for that reason the court here was
When the order of the Connecticut court was made it operated to transfer to the receiver therein appointed all the assets of the association in that State, but such an order has never yet been construed in the courts of this State to take away the title of the corporation to its assets here so far as to deprive the courts of this State of the right to control these assets for the benefit of domestic creditors. (Barth v. Backus, 140 N. Y. 230 ; Mahon v. Ongley Electric Co., 156 id. 196.) So far as these assets are concerned, it has been the policy of this State to retain the control of them for the benefit of our own creditors, and where a creditor has by legal process valid in this State acquired a lien upon those assets, that lien has been sustained. The general principle of law is not disputed. Nor can it be disputed that, so far as the title of Betts as receiver depends upon his .appointment by the Connecticut court, that appointment by itself carries with it no force to deprive domestic creditors of their right to pursue the assets in this State as though no receiver had been appointed. (Hibernia National Bank v. Lacombe, 84 N. Y. 367 ; Gluck & B. Rec. Corp. [2d ed.] 34, and note, § 52.)
The appellant can claim, therefore, only under the order appointing him ancillary receiver in this State. His claim is that, as the corporation had been dissolved in the State of Connecticut, it ceased to exist, so that no action could be brought against it in this State after the entry of the decree of dissolution in Connecticut, and, therefore, the plaintiff’s proceedings against the defunct corporation are coram nonjudice and void. But that question can only be raised by some person in this State who occupies a position which would entitle hint to claim the assets' and to complain that, because of the judgment and the attachment, his rights have been interfered with. It appears by the record that the action in which the appellant was appointed an ancillary receiver was begun oh the 28th of July, 1899,. and that the sole defendant was the National Life Association. All the appellant’s rights, then, come into existence by virtue of his appointment as receiver in an action which was begun after the corporation had been dissolved by the Connecticut decree. If the corporation was dead on the 7th of July, 1899, so that no action
We are not satisfied that the effect of this judgment of the Connecticut court was to finally and conclusively kill the corporation so-far as our jurisdiction is concerned or to take away the remedies of creditors in this State. The company had obtained the right to do-business in this State ; it had deposited a sum of money as required by the laws of this State with the Superintendent of the Insurance?. Department, and it appears that it had assets in this State which were subject to levy and which had been levied upon in' the plaintiff’s action ; and it further appears that it was engaged in business-up to the time when the. court undertook to appoint the ancillary receiver. Certainly whatever may be the legal fiction as to' the-existence of the corporation after the entry of the Connecticut decree, it is quite clear that that judgment did not at that instant operate to deprive the corporation of its property in this State, or-to vest it in any other person as against a creditor here.
Not only the property rights of the defendant but those of its-creditors necessarily required that the corporation should not be dissolved in this State until some one was put in its place who could protect the rights of the corporation and against whom proceedings-might be taken. Interstate comity does not require us to hold that., the necessary effect of the Connecticut decree was, absolutely and at. once, to put an end to the rights of the corporation in this State until that- decree had been presented to the courts of this State and some-judgment- had been-entered'upon it under such circumstances as to-give some one here the right to enforce it. If we should hold that -the corporation is dead in-this State the moment the decree is-entered in Connecticut, it results that there is no one in this State who could sue in the name of the corporation or against whom an action can be. brought; and so the consequence .would be that.
Van Brunt, P. J., Patterson" and O’Brien, JJ., concurred;. Ingraham, J., dissented.
Dissenting Opinion
I dissent. The defendant was a corporation organized under the laws of the 'State of Connecticut. The summons in-this action was served upon the Superintendent of Insurance on the 15th of July, 1899, and the warrant of attachment was granted on the 29th of July, 1899. Prior to the commencement of this action and on July 7, 1899, a decree was entered in an action pending in the Superior Court of Hartford, Conn., upon the appearance of the defendant whereby it was decreed that the said defendant corporation be dissolved ; and a receiver of all the property of the corporation was duly appointed. We have thus the decree of a court of general jurisdiction of a sister State entered upon notice to, and the appear
The receiver appointed by the. decree of the Connecticut court was vested with the title to all of the property of the corporation in this State. As such receiver he “ can reduce to possession. all the property of the defendant in this state, and can bring replevin for that purpose* or trover to recover damages for conversion. Notes and accounts may be collected by the usual .proceedings in our courts, which regard a foreign receiver as representing the original owner and open their doors to him as they do to a domestic receiver. * * * Every remedy to gather in the assets is afforded, unless it would interfere with the policy of the state or impair the rights of its own citizens.” (Mahon v. Ongley Electric Co., 156 N. Y. 201.) The doubt entertained by the learned judge below that “ even though the defendant may have been dissolved, a suit may still be maintained against it in this State by a domestic creditor seeking to secure the payment of his debt out of a corporate prop
Order affirmed, with ten dollars costs and disbursements.
