Judges： Mayham
Filed Date： 7/8/1893
Status： Precedential
Modified Date： 11/12/2024
The defendant was incorporated under chapter 189, Laws 1879, with power to make insurance, and also to-institute subordinate lodges, subject to its direction and supervision. In September, 1886, Charles S. Nickelson became a member of. the respondent corporation, and received its certificate, which provided that in the event of his death the sum of $2,000, provided in section 25 of the by-laws of the defendant, should be paid, $1,000 of which, by the terms of the certificate or policy, was made payable to his wife, Mary A. Nickelson, two-thirds of the residue to his daughter, Lucy M., and one-third of such residue to his son, George H. Nickelson. The assured survived his wife,, and on the 18th of January, 1892, died, leaving him surviving George H. Nickelson, Lucy M. Nickelson, and Cora E. Moses, his heirs and next of kin, who duly notified the grand lodge of the death of the assured, and filed with the grand secretary, at the proper office, proof of such death; and thereafter the grand lodge assessed the members of the order in accordance with the by-laws, upon the death of Charles T. Nickelson and that of John F. Baade, a full-rate member of the order, who had died previous to such assessment, and on that assessment there was paid to the temporary receiver of the defendant the sum of $4,870.14, such receiver having been appointed on the application of the defendant in proceedings instituted by it for a voluntary dissolution of the
It will be seen from an examination of above facts and other facts in the case that this corporation at the time of the commencement and prosecution of this action by the attorney general was an insolvent corporation, with liabilities far in excess of its assets, a fact conceded by the trustees and managers of the corporation, by the attempted voluntary dissolution, and that the action prosecuted by the attorney general was but the usual and legal method of dissolving an insolvent corporation, and thus accomplishing the result sought in vain to be accomplished by the respondents. In that action, through the receiver, all the assets of the corporation can be marshaled, and all valid claims against the fund ascertained and determined by ’and before the referee who was appointed to take proof of claims against such corporation. If, therefore, the heirs of Charles H. Nickelson, who are petitioners to intervene in this action, were creditors of the corporation, their rights would be fully protected in this action, as they, with all other creditors, would be represented by the receiver, whose duty,
“It is not necessary that these parties should intervene in order to establish their claim against the assets in the hands of tire receiver. To secure such assets, and to protect and apply the same to their legitimate use, is tire duty of the attorney general and the receiver. Since the case of Attorney General v. North American Life Ins. Co., 77 N. Y. 297, the desire to intervene for all causes and for no cause has become common, and the discretion of the court has been exercised in favor of such applications to the great prejudice of the due and proper administration of the law. Each intervener has a* right to appeal, and thereby may greatly delay the proceedings.”
In view of that fact, we think the danger of adsolution of the fund, against which the learned judge at special term perhaps justly, objects, would be greatly aggravated, rather than mitigated. In the case of Attorney General v. Continental Life Ins. Co., 90 N. Y. 45, policy holders were allowed to intervene, and upon an application for allowance to attorneys, which came before the court of appeals, Finch, J., said:
“These were busy themselves, and kept the court busy, their positions changing during the exigencies of the struggle, sometimes fighting each other, now assailing the receiver, and then defending him, until the controversy became greatly involved, and the fund seriously imperiled by the alleged effort to defend and increase it.”
It can hardly be maintained that intervention in this case was necessary or proper to guard the fund against the exaction of the attorney general’s office in costs, especially as that officer is required by law to report to the comptroller and legislature all costs adjudged to the people and costs recovered by the attorney general, and the manner in which he has expended or applied the same. Chapter 643, Laws 1873; section 53, c. 683, Laws 1892; and, also, section 56 of the same act. Nor do we think intervention necessary
As has been seen, an order was made in this action appointing a referee before whom claims against this corporation can be proved, and it also appears from the case that another referee was appointed on this motion to take proof of the claim of the petitioners to the fund in the hands of the receiver. We see no necessity for this while the reference and the judgment to take proof of claims stands. All the facts which could be proved before the referee appointed by this order can be proved before the referee appointed under the judgment, and, while we believe that either of the gentlemen appointed as referee to take proof of claims is worthy of the fullest confidence, we can see no good reason for suspending the former by the appointment of the latter; nor do we see any necessity for two referees for the performance of substantially the same duty. On the whole, we think the order appealed from should be reversed.
Order reversed, with $10 costs and printing disbursements. All concur.