25 Barb. 457 | N.Y. Sup. Ct. | 1857
The 14th section of the act of 1849, to provide for the incorporation of insurance companies, (Laws of 1849, p. 447,) although unskillfully and inartificially drawn, will, nevertheless, in my judgment, authorize a pre-existing mutual insurance company to change its name and extend its charter, by complying with the provisions of the statute. It provides for such extension by altering or amending the charter so as to accord with the.provisions of the act, and filing a copy of the charter so altered or amended in the office of the secretary of state, with the consent and declaration mentioned in the 14th section, and thereupon such proceedings shall be bad as are required by the 11th section of the act. The 11th section requires the examination of the charter by the attorney general, and he is to certify it to the comptroller, who is to examine personally, or by persons to be appointed, as to the capital, premiums or engagements for insurance, and on filing the proper certificate in the office of the secretary of state, he is to furnish the corporation with a certified copy of the charter and other papers filed, and upon filing these papers in the office of the clerk of the county where the company is to be located, the corporation may commence business. This charter is, by the 10th section of the act, to declare, amongst other things, the mode and manner in which the corporate powers under the act are to be
Another objection to the complaint is, that the receiver has no power to make an assessment upon the premium notes belonging to the corporation ; that by the terms of the contract, it can only be made by the directors of the company; that the act of 1852, (Laws of 1852, p. 67,) purporting to authorize receivers of mutual insurance companies to make assessments, is unconstitutional and void as to notes given before the passage of that act, (as was the ca.se with the note in •'uit.) The conclusive answer to the objection of unconstitutionality of the act is, the power reserved to the legislature, by the charter of this company and the general act under which it was re-organized, to alter or repeal the charter. The obligation of the contract wí s that the maker of the note should pay his proportion .of losses and expenses of the company, in proportion to the amount of his premiun note. (Laws of 1836, p. 275, §§ 43, 44.) The note was made payable at any time when the directors should deem the same requisite for the payment of losses and incidental expenses. (Ch. 43, § 6.) And when notices of losses were received or judgment obtained against the company, for losses, the charter provided (id. 45, § 10) that the directors should Settle and determine the sums to be paid by the several members of the corporation as their respective proportions of such
Judgment upon demurrer in favor of the plaintiff, with leave to the defendant to answer on payment of $35 costs.
Rosehrans, Justice.]