Suffolk County Trust Co. v. National Surety Corp. , 291 N.Y.S. 82 ( 1936 )

In an action to recover against the surety on the bond of the committee of an incompetent person, it appeared that the committee had made certain improper and illegal payments out of the estate in 1931. The original surety was the National Surety Company, which was taken over by the Superintendent of Insurance, as rehabilitator, on April 29, 1933. This defendant was organized as a separate corporation and made an agreement with the Superintendent of Insurance that it would take over the assets of the old company, and, among other things, would assume liability on fiduciary court bonds for “ all losses occurring on and after the 1st day of May, 1933, and all losses as to which no notice was received by the Old Company prior to Midnight of April 30th, 1933.” It thereafter filed with the court an assumption certificate limiting its liability as provided in the agreement. The plaintiff sued, claiming that the loss was not fixed until June 25, 1934, when an order was made and- entered in the Supreme Court surcharging the committee with the amount of the items so illegally paid, directing that she account and make such payment, removing her as committee, and appointing the present committee in her place. Judgment was rendered for the plaintiff on the theory that the loss did not occur until there was such judicial determination, and that defendant was liable under the terms of the assumption certificate. Judgment reversed on the law, with costs, and the complaint dismissed, with costs, on authority of Coleman v. National Surety Corporation (244 App. Div. 244). Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.