Utica Insurance v. American Mutual Insurance , 1853 N.Y. App. Div. LEXIS 118 ( 1853 )

By the Court, Gridley, J.

All the objections to the recovery were given up by the defendants’ counsel, except that founded on the 16th section of the act of 1849. (Laws of 1849, p. 448.) That section provides that the corporation may sue its stockholders ; and that “ suits at law may be prosecuted by any stockholder, against such corporation, for losses which may have accrued (if payment is withheld more than two months,) in all risks after such losses shall have .become due.” The word due has two meanings. The one indicates a debt ascertained and fixed, though payable in futuro ; and the other a debt, where the money has become payable, so that a suit will lie on it presently. The first objection applies whenever a sum of money is due by a certain and express agreement, as by a bond for a determinate sum, a bill, a note, or a special bargain, or rent reserved on a lease; when the quantity is fixed and specified, and does not depend ' on any subsequent valuation to settle it. (2 Jacob’s Law Dic. 198.) This is in accordance with the old maxim, “ Debitum in presentí, solvendum in futuro.” The amount due in this case was settled, by a resolution of the company, on the 13th day of January, 1852, and the money declared to be payable in sixty days thereafter. This suit was not commenced till after the expiration of the said sixty days. This was right. It was not the intention of the act to give a further credit of sixty days, after the expiration of the two months from the time when the proofs were received by the company, and the amount had been settled and allowed, and fixed absolutely, by the defendants. By that settlement, stated in the resolution of the 13th of January, 1852, the money became due by the true interpretation of the statute, payable in sixty-days thereafter. Such we think is the true construction of this section.

[Oneida General Term, January 5, 1853.

Gridley, Pratt, W. F. Allen and Hubbard, Justices.]

New trial denied.