Crooke v. Mali

11 Barb. 205, 1851 N.Y. App. Div. LEXIS 15

• Court: New York Supreme Court
• Decided: June 14, 1851
• Status: Published

Opinion

By the Court,

King J.

It is urged by the counsel for the plaintiffs in error, as a reason for reversing the judgment of the superior court, that it does' not appear that the note in suit was ever indorsed by them. This objection seems to be too late: however, it was assumed on the trial, that the note was properly indorsed by the plaintiffs in error; and the only point raised, was as to the transfer of the note, by the Croton Insurance Company to the defendants in error. The objection, if it in reality existed, might have been obviated, if mentioned at the trial; and we must now intend, that every thing necessary to sustain the verdict was proved, unless the omission was taken advantage of by exception in the court below. (Jenks v. Smith, 1 Comst. R. 90. Henry v. The Bank of Salina, 1 Id. 83. Holbrook and others v. Wight, 24 Wend. R. 169.) A similar principle is applicable to the objections, which seem now to be raised for the first time, that the transfer of the note by the company to the defendants in error, was void, as made in contemplation of insolvency, and with intent to give a preference, contrary to 1 R. S. 3d ed. p. 722, § 9; and p. 734, § 4.

The only question raised in the court below, seems to have been this, that the note was not negotiated by the company according to the authority given to them in their charter, and for some purpose therein mentioned. It appears that the note was one for premiums in advance, given according to the provisions of the 12th section of the charter of the company, (Laws of 1843, p. 66; and Laws of 1842, p. 263;) that it was pledged as security on an advance of money to its full amount to the company, which advance the company is unable to repay. And the cases of Deraismes v. The Merchant’s Mutual Ins. Co. (1 Comst. 371;) and of Howland & Aspinwall v. Myer, (Id. 590;) seem decisive of the right of the defendants in error to recover in this action.

(b)

[New-York General Term, June 14, 1851.

Edmonds, Edwards and King, Justices.]

In the latter case no resolution of the board of trustees authorizing the transfer of the note in suit was shown, though it appeared that the by-laws authorized the president to transact all the ordinary business of the corporation. In the present case no by-law is shown, but it appears that there was a resolution of the board of trustees authorizing the pledge of its assets to raise money to pay its debts; even if the general agency belonging to the situation of president of the company, would not extend to authorize the borrowing of money, on a pledge of its securities, for the payment of its ordinary business debts.

It is objected by the counsel for the plaintiff in error that the resolution of the board which was proved, did not authorize the transfer of the note in suit, as it did not then exist. It appears that on the 7th February, 1846, the plaintiffs in error gave their note to the company payable at 12 months, for $3001,20. That on the 27th February, 1846, the resolution authorizing the pledge of the assets of the company, was passed; and that afterwards, the plaintiffs in error substituted two notes, one being the note in suit, in place of the original note for $3001,20. If a resolution was required to render the pledge, in this case, valid, the substituted notes would seem to be as much within the resolution as the original note, in whose place they were put.

The judgment of the superior court should be affirmed, with costs.

See the case of Brouwer, receiver of tie Croton Insurance Co. v. Crooke & Fowks, (4 Comst. 51 to 55 ;) reported under the title of “ Brown v. Crooke,” in Which the principle of the case of Deraismes v. The Merchant’s Mutual Insurance Company, (1 Comst. 371,) is re-affirmed.