Swing v. Dayton

108 N.Y.S. 155 | N.Y. App. Div. | 1908

COOHKANE, J. :

The plaintiff,' as trustee for the creditors of a dissolved Ohio mutual fire insurance company, brings this action against a citizen of Pennsylvania to recover an assessment decreed by the Ohio courts against him as a member of such company.'

The defendant’s insurance, by virtue of which he became a member of-said company, was first solicited of" him in. the State of his residence by a representative of the company who personally visited him for that purpose. Mo arrangement was made with this representative, but the subsequent parts of the transaction were conducted by correspondence between the defendant at his Pennsylvania residence and the Ohio company. The company on August 6, 1888, mailed to the defendant what it called a Lloyd binding certificate, which recited that it became upon its acceptance by said assured a mutual agreement, etc.; that it was issued temporarily and would be exchanged for the policy of the company October 1, 1888. The reason for the certificate seems to have been that the company was not yet fully authorized to issue policies. Thereafter on September first the company again mailed to defendant an indorsement to attach to said certificate', with. a return portion to be returned to itself, which recited that it had all the force and effect of, and was equally binding as the policy of the company; that it was issued and accepted temporarily only; that it would be exchanged for the policy of the company on October 1, 1888, and contained the following clause : “And the same is hereby accepted by the undersigned, the assured therein named, G. A. Dayton.” This was signed by the defendant in Pennsylvania and returned by mail to the company. October fifth the company mailed to the defendant the policy to be exchanged for the above-mentioned certificate, and requested that the defendant return said certificate, which he did, by mail at his residence after there receiving the policy. The trial court has found as facts that the defendant received and accepted the certificate and received and accepted the policy in Pennsylvania, and that he there exchanged the certificate and policy and that the “ contract of insurance was solicited, made and entered into in the State of Pennsylvania.” I think such findings are sustained by the evidence. In South Bay Company v. Howey (113 App. Div. 385) it is held that a contract of insurance is made within the.State where the policy is delivered, and not where it is executed when it is executed and delivered in different States. The facts in this case are stronger than necessary to bring it within that decision.

By the statute law of Pennsylvania^* an insurance company of another State is prohibited from doing business in the former State without a certificate of authority from the proper officer. This company never complied with that law. The statute makes it unlawful for any person, company or corporation “ in any manner to aid in the transaction of the business of insurance. without complying fully with the provisions of this act,” and the violation of the act is made a crime. This same plaintiff brought a similar action against one Munson in Pennsylvania and was defeated. On appeal the judgment was affirmed. (See Swing v. Munson, 191 Penn. St. 582.) The courts of that State refuse, to lend their aid to enforce the contract because it was made in contravention of its statutes and involves the commission of a crime. The general rule in this State is that illegal and prohibited contracts are void without . being so- expressly declared by statute. (Barton v. Port Jackson & Union Falls Plank Road Co., 17 Barb. 397; Oneida Bank v. Ontario Bank, 21 N. Y. 495; Horton v. Erie Railroad Co., 65 App. Div. 590.) There are exceptions to this rule, but this case does not fall within the exceptions. This contract having been made in Pennsylvania with a citizen of that State, and in contravention of the laws of that State, and being for that reason unenforceable in the courts of that State, should not be enforced in this State.

' The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

* See Swing v. Munson (191 Penn. St. 582, 586). Since amd. by Laws of Penn, of 1907, No. 296.— [Rep.