88 N.Y. 424 | NY | 1882
The plaintiff brought an action against the defendant company, before it passed into the hands of a receiver, to recover upon a policy which it had issued upon the life of one William T. Cordner. On the last day for the service of
We are of opinion that the service of the answer without an order of a judge was good, and that the provisions of section 1778 of the Code did not apply to the action brought. That section provides for such order “ in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money upon demand or at a particular time.” The provision is not new or original with the Code. It appeared first in 1825 as part of an act to prevent fraudulent bankruptcies by incorporated companies, and provided that in every suit against such company “ upon any contract, note, or other evidence of debt,” judgment should be given on the return day, unless it should appear to the court by affidavit that the corporation had a good and substantial defense on the merits. (Laws of 1825, chap. 325, § 4.) The scope and application of this provision was indicated by the Supreme Court a few years later. (Anonymous, 6 Cow. 41.) It was held that a policy of insurance issued by an incorporated insurance company was not a contract, note or other evidence of debt within the meaning of the statute, and that the provision applied only to an action upon some instrument which is, in itself, evidence of debt, as a note, bond or bill of exchange. The same construction was again asserted in 1829. (Tyler v. The Ætna Fire
For this reason the order of the General Term was right and it should be affirmed, with costs.
All concur, except Andrews, Oh. J., absent.
Order affirmed.