74 N.J.L. 145 | N.J. | 1906
The opinion of the court was delivered by
This is a suit by the receiver of a mutual insurance company, incorporated in Ohio, to- recover assessments against a policyholder, made under authority of the Supreme Court of that state in insolvency proceedings at the suit of the attorney-general. The declaration avers that the insolvent companir vías duly incorporated under the laws of Ohio; that those laws provided that every person who effected insurance became a member of the company and bound to pay for losses and necessary expenses in proportion to the original amount of his deposit note or contingent
Some of the causes of demurrer rely upon the failure of the declaration to show a compliance by the insurance company with certain provisions of the Ohio statutes necessary to constitute a mutual insurance company, but since the demurrer admits the allegation that it was duly incorporated, it is no objection that the declaration fails to set out the various steps necessary to constitute such due incorporation. The requirement that the assured should assume its liability in writing was of this character; such a written assumption of liability was for the benefit of the corporation, to afford evidence of its assets; the liability itself arose from a subse
The giving of a deposit note does not seem to have been made by the Ohio statute a prerequisite to liability on the part of the assured.
Other causes of demurrer set up the failure of the directors of the insurance company to determine the amount of the assessment. This, however, seems unnecessary. Even if the defendant was not so far a party to the proceedings in the Supreme Court of Ohio that it is precluded from questioning the amount of the assessment (Hankins v. Glenn, 131 U. S. 319; Cumberland Lumber Co. v. Clinton Hill Lumber Co., 12 Dick. Ch. Rep. 627), nevertheless it is bound to pay an assessment made by the receiver. Meley v. Whitaker, 32 Vroom 602. In that case the authority of the receiver to make the assessment was deduced from his statutory power to site; in the present case his power to sue is averred to have been given by the decree of the Ohio court; but the different source of the power does not prevent the application of the reasoning in Meley v. Whitaker. Eor does the fact that the percentage to be assessed upon the several policies was fixed by the court and not by the receiver -differentiate this case; the actual amount in dollars and cents does not seem to have been fixed by the court, and the assessment, however made, is sufficiently shown to have been adopted by the receiver, who gave notice in accordance therewith. These considerations dispose, also, of the objection that the
We think none of the causes of demurrer assigned are sufficient; the demurrant is confined to those causes, and the plaintiff is entitled to judgment.