Swing v. Kaufman

Appellate Terms of the Supreme Court of New York

Swing v. Kaufman

115 N.Y.S. 143

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

Cited by1 cases

This text of 115 N.Y.S. 143 (Swing v. Kaufman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swing v. Kaufman, 115 N.Y.S. 143 (N.Y. Ct. App. 1909).

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Opinion

DAYTON, J.

Plaintiff, as trustee for the creditors and stockholders of an insolvent mutual fire insurance company of Ohio, sued to recover $64.91 and interest from June 11, 1901, as the proper assessment for which the firm of Kaufman & Strauss became liable under a decree of the Supreme Court of Ohio, dated December 18, 1891, dissolving said corporation and appointing plaintiff trustee;' said assessment being the .just proportion of said firm for the losses and expenses of said company during the period that said firm held its policy upon their property, to wit, $3,000, from April 17, 1890, to August 8, 1890—four months. The annual premium was $43.50. The statutes of Ohio provide that every insured person in a mutual company becomes a member thereof during the period of insurance and bound to pay for accruing losses and expenses "in proportion to the original amount of his deposit note or contingent liability.? It is claimed that this statute, followed by said judgment, entitled plaintiff to recover notwithstanding the fact that Kaufman & Strauss were not eo nomine parties by service or otherwise to the insolvency proceedings.

The complaint alleged that policy 4,358 was issued to and accepted by said firm. The evidence is that William Strauss died in 1888, two years before the alleged policy was issued. The policy is stamped as follows: “This policy has been legally effected by L. Joseph, licensed insurance agent, 39 Broad street, N. Y.”—and expired by its terms May 1, 1901. It was undisputed that “Mr. Joseph” sent his check, $36.16, for the net premium on June 37, 1890, and that on August 7, 1890, returned the policy for cancellation and requested that the return premium be sent to him. ' The company shortly thereafter forwarded the return premium, $30.88, to E. Joseph, who signed there[145]*145for as follows: “Kaufman & Strauss, per L. Joseph.” The testimony was that“L.” Joseph died in 1888, and that Solomon Joseph, his son, succeeded to the business, and (the fair inference is) continued the name, “L. Joseph”; for the check of the insurance company for $20.88 return premium was deposited by Kaufman & Strauss in its account in the Chemical National Bank about August 24,1890. Thus the agency of “L. Joseph” in the issuance of the policy is established by ratification. Plaintiff proved that a notice of the assessment claimed (Exhibit 11) was duly mailed to the defendants December 10, 1906, with a printed address on the envelope, postage prepaid, and was not returned.

Appellant urges plaintiff’s failure to prove insolvency of the company, the amount or method by which the deficiency was arrived at, the failure by competent evidence to show his appointment as receiver, and the decree for the assessment; also that plaintiff’s remedy is provided by the laws of Ohio and cannot be enforced in this- state. The acceptance of the policy made the insured members of the company with all the obligations thus assumed, and they were concluded by the Ohio proceedings, which resulted in its adjudicated dissolution and their liability which followed. The proof was sufficient to show the regularity of those proceedings actually and presumptively. The weight of authority seems to hold that the courts of record of this state have jurisdiction to enforce this claim.

The objection that the Municipal Court is without jurisdiction here- . in is well founded. The respondent argues that the amount claimed is a computation sought to be recovered in the nature of an account, and not a personal judgment. The difficulty, however, is that this obligation fixed upon the defendants was by the adjudication of an Ohio court of record, after consideration of proofs, and it is for the sum so adjudicated that the plaintiff sues. Section 1, subd. 6, of the Municipal Court act (Laws 1902, p. 1488, c. 580), expressly prohibits actions in that court upon judgments of a court of record. Muttart v. Muttart (Sup.) 93 N. Y. Supp. 468; Weisel v. Old Dominion S. S. Co., 99 App. Div. 568, 91 N. Y. Supp. 140.

The judgment must therefore be reversed, and the complaint dismissed, with costs. All concur.

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DAYTON, J.

Plaintiff, as trustee for the creditors and stockholders of an insolvent mutual fire insurance company of Ohio, sued to recover $64.91 and interest from June 11, 1901, as the proper assessment for which the firm of Kaufman & Strauss became liable under a decree of the Supreme Court of Ohio, dated December 18, 1891, dissolving said corporation and appointing plaintiff trustee;' said assessment being the .just proportion of said firm for the losses and expenses of said company during the period that said firm held its policy upon their property, to wit, $3,000, from April 17, 1890, to August 8, 1890—four months. The annual premium was $43.50. The statutes of Ohio provide that every insured person in a mutual company becomes a member thereof during the period of insurance and bound to pay for accruing losses and expenses "in proportion to the original amount of his deposit note or contingent liability.? It is claimed that this statute, followed by said judgment, entitled plaintiff to recover notwithstanding the fact that Kaufman & Strauss were not eo nomine parties by service or otherwise to the insolvency proceedings.

The complaint alleged that policy 4,358 was issued to and accepted by said firm. The evidence is that William Strauss died in 1888, two years before the alleged policy was issued. The policy is stamped as follows: “This policy has been legally effected by L. Joseph, licensed insurance agent, 39 Broad street, N. Y.”—and expired by its terms May 1, 1901. It was undisputed that “Mr. Joseph” sent his check, $36.16, for the net premium on June 37, 1890, and that on August 7, 1890, returned the policy for cancellation and requested that the return premium be sent to him. ' The company shortly thereafter forwarded the return premium, $30.88, to E. Joseph, who signed there[145]*145for as follows: “Kaufman & Strauss, per L. Joseph.” The testimony was that“L.” Joseph died in 1888, and that Solomon Joseph, his son, succeeded to the business, and (the fair inference is) continued the name, “L. Joseph”; for the check of the insurance company for $20.88 return premium was deposited by Kaufman & Strauss in its account in the Chemical National Bank about August 24,1890. Thus the agency of “L. Joseph” in the issuance of the policy is established by ratification. Plaintiff proved that a notice of the assessment claimed (Exhibit 11) was duly mailed to the defendants December 10, 1906, with a printed address on the envelope, postage prepaid, and was not returned.

Appellant urges plaintiff’s failure to prove insolvency of the company, the amount or method by which the deficiency was arrived at, the failure by competent evidence to show his appointment as receiver, and the decree for the assessment; also that plaintiff’s remedy is provided by the laws of Ohio and cannot be enforced in this- state. The acceptance of the policy made the insured members of the company with all the obligations thus assumed, and they were concluded by the Ohio proceedings, which resulted in its adjudicated dissolution and their liability which followed. The proof was sufficient to show the regularity of those proceedings actually and presumptively. The weight of authority seems to hold that the courts of record of this state have jurisdiction to enforce this claim.

The objection that the Municipal Court is without jurisdiction here- . in is well founded. The respondent argues that the amount claimed is a computation sought to be recovered in the nature of an account, and not a personal judgment. The difficulty, however, is that this obligation fixed upon the defendants was by the adjudication of an Ohio court of record, after consideration of proofs, and it is for the sum so adjudicated that the plaintiff sues. Section 1, subd. 6, of the Municipal Court act (Laws 1902, p. 1488, c. 580), expressly prohibits actions in that court upon judgments of a court of record. Muttart v. Muttart (Sup.) 93 N. Y. Supp. 468; Weisel v. Old Dominion S. S. Co., 99 App. Div. 568, 91 N. Y. Supp. 140.

The judgment must therefore be reversed, and the complaint dismissed, with costs. All concur.

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115 N.Y.S. 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swing-v-kaufman-nyappterm-1909.

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