Osgood v. Maguire

61 Barb. 54, 1871 N.Y. App. Div. LEXIS 148

• Court: New York Supreme Court
• Decided: November 7, 1871
• Status: Published

Opinion

By the Court, Geo. G. Barnard, J.

This action is brought upon promissory notes made by the defendant to the company of which the plaintiffs are. receivers, for the payment of premiums upon policies of insurance. An attachment was issued in the action, and the defendant appearing therein set up as a defense, that the receivers had not been properly appointed; that when the notes were given the company was insolvent, and that the defendant, being a citizen of the State of Massachusetts, on the 14th of August, 1866j another citizen of that State commenced an action against the company, in Massachusetts, in which he attached the claim against the defendant, and that the plaintiffs in this suit appeared as claimants in that suit, and the suit is pending.

We have held, in this department, that the receivers in this case were properly appointed. The company ceased to have a corporate existence after the Judgment of this court dissolving it, which was rendered in February, 1866. The attachment process was commenced in Massachusetts, in 'August following, and certainly can be no defense. (Bangs v. Duckinfield, 18 N. Y. 596. Mann v. Pentz, 3 N. Y. 421. Mumma v. Potomac Co., 8 Peters, 286. Ward v. Sea Ins. Co., 7 Paige, 299.)

The courts of Massachusetts hold that foreign receivers have no right to intervene. (Folger v. Columbian Ins. Co., 99 Mass. 267. Taylor v. Same, 14 Allen, 353.) The pendency of the attachment suit, then, is no bar to this action. A judgment there, might be. (Williams v. Ayrault, 31 . Cook v. Litchfield, 5 Sandf. 330. Jackson v. Willson, 9 John. 94.)

[First Department, General Term, at New York, November 7, 1871.

I think the judgment should be affirmed, with costs.

Judgment affirmed.

Ingraham, P. J., and Car doto and Geo. &. Harnard, Justices.]