In re Keogh

50 N.Y.S. 998 | N.Y. Sup. Ct. | 1897

Smyth, J.

The objection to the sufficiency of the amount “ fixed ” by this court as the penalty of the bonds proposed to be given in these matters cannot be sustained. The lienor’s remedy, if any, is by motion to increase the amount so “ fixed.” The objection to the justification of The City Trust Safe Deposit &■ Surety • Company of Philadelphia, the surety upon said- bonds, in toy opinion, is not well taken. It appears by the examination of the vice-president and general manager and agent of the company in this city and state, that the company has been |duly authorized by the - insurance department of this -state to transact the business of “Fidelity and Guarantee Insurance” therein, said company -having complied with the laws of this state. It further appears that it has submitted to an examination before a referee appointed by this court as to its solvency, pursuant to the-provisions of chapter 720, Laws of 1893, as amended.by chapter 178, Laws of 1895, and that upon such inquiry and examination, it was found and so reported to the referee, to be solvent. The report of the referee wás duly confirmed by this court, and, subsequently to the confirmation of the referee’s report, the company hasi filed a sworn statement, showing its condition down to the 30 th of April, 1897. By this statement it appears, that said company at the date thereof wa's perfectly solvent arid no suggestion is. made that its condition is at this time otherwise than solvent. . By section 4 of the act of 1893, as amended by section 2 of the act of 1895, it is provided that such statement and examination when filed with the clerk of this county, shall be received and considered -as given in justification upon any and all bonds 'and undertakings or other instruments executed' or guaranteed by such company, and it appearing by the statements and examination of the company that it is solvent, it seems to me that, before I would be justified in refusing to approve and accept the .bonds in question, sufficient facts should be presented by the objections to overcome the presumption of the present solvency of the company and to call upon the court in the exercise of its discretion to direct further justification either'limited to any particular matter relative to the condition of the company or generally Ho such facts having been presented, the justification must be deemed sufficient and the bonds be accepted and approved.

Ordered accordingly,