Rodgers v. Adriatic Fire Ins. Co.

• Decision Date: 19 December 1895
• Citation: 42 N.E. 515,148 N.Y. 34
• Parties: RODGERS v. ADRIATIC FIRE INS. CO. SCAMMON v. METROPOLITAN TRUST CO.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 34

42 N.E. 515

RODGERS

v.ADRIATIC FIRE INS. CO.

SCAMMON

v.METROPOLITAN TRUST CO.

Court of Appeals of New York.

Dec. 19, 1895.

Appeal from supreme court, general term, First department.

Petition by Arianna E. Scammon, as executrix of the will of J. Young Scammon, deceased, to compel the receiver of the Adriatic Fire Insurance Company to pay certain judgments. From a judgment of the general term (34 N. Y. Supp. 323) affirming a judgment denying such application, the petitioner appeals. Affirmed.

Charles B. Alexander, for appellant.

Oliver P. Buel, for respondent.

FINCH, J.

The motion, which has thus far been denied, and which on this appeal we are asked to grant, is for an order requiring the defendant, as receiver of the Adriatic Fire Insurance Company, to pay from the assets in its possession a judgment against that corporation, obtained in the state of Illinois after the company had been dissolved, and when it no longer existed. It was a domestic corporation, formed under our laws, and so subordinate to our authority, and in 1883 a final judgment of dissolution and appointing the defendant receiver was entered in this state. At that time the action of Scammon against the company upon two policies of insurance was pending in the state of Illinois, and by two stipulations was dependent upon the result of a similar action against the Commercial Union Company. The first of these expired and became inoperative in 1881, and the second was made in 1886, after the dissolution, without authority of the receiver, or any order of our courts preserving the action from abatement or permitting its continuance. On the contrary, when, in 1887, the receiver learned that a renewal of the litigation was probable, he gave formal notice to the counsel who had represented the company that no authority from the receiver would be given them, and that it would take no part in the Illinois litigation. This notice was put upon the distinct ground that by the dissolution of the company any judgment against it was impossible, and that the creditor's remedy must be pursued under the laws of this state. In accordance with their provisions the usual notice was given by publication requiring creditors to present their claims as preliminary to a final distribution of the assets of the dissolved company, but neither Scammon nor any assignee of his presented the claim upon the two policies, or made any appearance in the proceedings. Yet the receiver was quite aware of the Illinois litigation, and, while insisting that it could not bind or affect the corporate assets in this state, was, nevertheless, not blind to the possibilities of danger and the need of protection; and so it happened that, on the settlement of the accounts, a sum of $17,000 was directed to be retained to meet the possible danger. That clause in the judgment confirming the report did not purport to recognize the claim as valid, or waive any defense which the receiver might have, and so I think it must be that the right of the applicant to be paid out of the fund reserved rests wholly upon the validity and effective force of the Illinois judgment. As a mere claim, the statute of limitations, if nothing else, is an effective bar. We are compelled, therefore, to determine the force of the foreign judgment.

Under our law it is perfectly well settled that...