197 N.Y. 279 | NY | 1910
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As the case comes up to this court, all questions of fact are conclusively settled by the action of the courts below. We are not concerned with any questions, which relate to the manner of the application for, and of the issuance of, the policies of insurance; or to the subsequent adjudication of the insolvency of the insurer, the Electric Mutual Casualty Association, a corporation organized under the laws of the state of Pennsylvania, for the purpose of carrying on the business of accident insurance and of insuring its members on the mutual assessment plan; or to the appointment of the plaintiff as receiver, in proceedings instituted by the attorney general of the state of Pennsylvania, in the Court of Common Pleas, of Dauphin county, in that state, which were regular according to the laws and practice of that state; or to the decree ordering and levying an assessment upon all members, including this appellant, holding assessable policies The defendant, notwithstanding it was not a party before the Pennsylvania court, was bound by the proceedings there had, which resulted in the order for an assessment; so far as the necessity for making it was determined. The directors might have made it and the court, having assumed the charge of the assets and affairs of the corporation, could exercise their office, in that respect. The decree, however subject to direct attack, was not subject to collateral attack. (Great Western Telegraph Co. v. Purdy,
The first important question for our consideration, upon this appeal, is whether these policies of insurance represented contracts of the parties, made in the state of Pennsylvania, or in this state. The referee does not find upon this subject, otherwise than by a statement of the facts, showing how they came to be issued. According to them, written applications for the policies were mailed by the treasurer of the appellant to the association, at its office in Philadelphia; one from Penn Yan, in the state of New York, and two from Worcester, in the state of Massachusetts, the latter being the place of his *285
residence. Policies were issued, thereupon, by the association, which were mailed to the appellant, addressed to the places from which the applications had been forwarded. They were retained by the assured and remained in force during the periods specified in each policy. I think it to be clear that the contracts for insurance were made in the state of Pennsylvania; for it was there that the applications were received and acted upon. It was there that the policies were executed and issued. Upon being mailed to the appellant, they became effective and having been retained by the assured, there is, of course, no question of its acceptance of their terms and conditions. If Pennsylvania contracts, no question is raised as to their validity there and if valid there, then they are valid everywhere. There is no statute of this state, which forbids its citizens from entering into contracts with foreign corporations, and any law to such effect would be of doubtful validity, within the provisions of the fourteenth amendment of the Federal Constitution. (SeeAllgeyer v. Louisiana,
If, then, these insurance contracts were validly made and enforceable in the foreign state, is there any force in the objection that the case is not one "for the exercise of judicial comity?" I think not. If any policy of the state would be contravened by admitting the receiver to sue in our courts upon these contracts, the rule of comity could not be applied. But how can it be said that they are repugnant to any public policy? The most that can be argued is that the defendant had contracted for insurance with a foreign insurer, which had not qualified itself for transacting such a business in this state. But that objection is without good ground, when, as we have seen, the insurer was not in this state for the business of insurance and was not shown to be procuring it by means of solicitation, direct, or indirect. The objection is unavailable, unless it can be made to appear that in permitting the enforcement *287
of the appellant's agreement, some public policy will be contravened, or that the rights of our citizens will be interfered with. Subject to these qualifications, the right of the plaintiff, as a foreign receiver, to maintain this action in this state, upon the principle of comity, is one which has long been recognized. (Dayton v. Borst,
I think that the plaintiff could maintain the action here to recover the unpaid balance of the premium due and the assessments made and, therefore, that the judgment, appealed from, should be affirmed.
EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; CULLEN, Ch. J., absent.
Judgment affirmed, with costs.