#### Charles W. Martyne, Appellant, *v.*American Union Fire Insurance Company of Philadelphia, Penna., Defendant. Charles Johnson, Insurance Commissioner of the Commonwealth of Pennsylvania, Respondent. (Action No. 5.)

Second Department,

May 14, 1915.

Corporation —judicial dissolution of foreign insurance company—rights of creditors — attachment of properties in hands of liquidators.

Where a foreign insurance corporation, licensed to do business in this State, has been dissolved by a decree of the courts of the foreign State, and pursuant to judicial decrees its foreign assets have been turned over to the Insurance Commissioner of the foreign State and its domestic assets to our own Insurance Commissioner for the purposes of liquidation, the corporation has become civilly dead, and a creditor in this State cannot thereafter maintain an action against it to attach its property within this State upon the theory that his action is *in rem.*

While a claimant against such defunct foreign insurance company has a right to the return of unearned insurance premiums and for that purpose to share in sums due to the insurer from another company, the claim is merely one provable on the liquidation of the affairs of the corporation by the Insurance Commissioners, and does not authorize a suit against the corporation itself or an attachment of its properties.

Appeal by the plaintiff, Charles W. Martyne, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of January, 1915, vacating the service of the summons, warrant of attachment and levy thereunder in this action.

The American Union Fire Insurance Company was incorporated in Pennsylvania, and began business in Philadelphia on January 3, 1911. It was soon admitted to New York. On the strength of its deposit with the Pennsylvania Insurance Department it was not required to make any deposit in New York. It had a general reinsurance contract with a Russian company, the Warsaw Fire Insurance Company, by which automatically a certain portion of its risks was ceded to and taken over by the reinsurers. But the American Union Fire Insurance Company seems to have been unfortunate, so that in about two years the Commissioner of Insurance of that Com*381monwealth took steps to wind it up. Under provisions of State laws like those of New York the Court of Common Pleas of Dauphin county, upon the Commissioner’s application, made an order finding the American Union Fire Insurance Company insolvent, declaring it dissolved, and its corporate existence ended, and directing its affairs to be liquidated by the Insurance Commissioner. This order took effect on being filed on March 27, 1913, in the office of the clerk of the county of Philadelphia.

The present plaintiff, a citizen of the State of New York, in April began this and other suits upon assigned claims for return premium on subsisting and unmatured policies at the date of dissolution. The affidavit for attachment set forth the dissolution proceedings in Pennsylvania, and the order appointing the Pennsylvania Commissioner as liquidator, and deposed that by such court order the policies of insurance became and were broken and ended, so that defendant became liable to return to the insured or their assigns the unearned portions of the premiums. By serving the attachment so obtained on the local agent of the Warsaw Fire Insurance Company plaintiff claimed to have levied on what the Warsaw Company owed the defendant, which was in large part the unearned premiums for reinsuring defendant. The summons was served on the defendant’s former agents in New York and upon the Superintendent of Insurance in New York. Subsequently an order for publication was attempted to be served on defendant by publication as required by its terms.

On April twelfth the New York Superintendent of Insurance moved in the Supreme Court in New York county upon consent of the Pennsylvania Insurance Commissioner for an order, which was granted, directing him to take over the company’s assets in this State under the Insurance Law, section 63. The Insurance Commissioner of Pennsylvania, appearing specially herein, on November 7, 1914, moved, on notice to Mr. Emmet, the New York Insurance Superintendent, to vacate all plaintiff’s proceedings. After hearing, his motion was granted, and an order made, vacating the service of the summons, the warrant of attachment, and the attempted levy thereunder, from which order plaintiff has appealed.

*382
      *Edward Sandford*[ *Wharton Poor*with him on the brief], for the appellant.

*James E. Finegan,*for the respondent.

Per Curiam:

The insolvent insurance company was already *civiliter mortuus,*and its assets placed in liquidation, when this suit was begun. Its civil death was not ignored, hut set forth as a basis of these New York proceedings. After the corporation had been thus dissolved and its existence ended, how could it be sued, and its former agents in New York subjected to service ? The Court of Appeals has declared that, although a New Jersey corporation was *in esse*when sued, the effect on our proceedings of its subsequent dissolution was to he settled by the New Jersey statutes. “The existence and the powers of any foreign corporation coming into this State to do business are at all times subject to the law of its creation and of its domicile and, additionally, to our laws relating to it, and the terms laid down by our Legislature as conditions of allowing it to transact business here.” *(Sinnott v. Hanan,*314 N. Y. 454.)

The terms of the Pennsylvania statutes under which defendant was dissolved correspond with like provisions of the New York Insurance Law. Under these statutes in the domiciliary State the corporation was ended for all purposes without any continuance of its legal existence as to creditors, as did the statute of New Jersey invoked in *Sinnott*v. *Hanan (supra):*
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      **Counsel concede that appellant can take no judgment *in personam,*but urge that we sustain these attachment proceedings as in the nature of proceedings *in rem.*

We are not called on to discuss the general policy of State *i*courts in upholding attachments by domestic creditors as against rights under prior liquidation in the foreign corporate domicile. Attaching creditors may be at times preferred upon a cause of action existing and matured before any corporate dissolution, if the creditor is in a position to sue on the debt *383and can ignore any outside liquidators or the results of dissolution. But here the contrary appears. The New York standard fire insurance policy allows either party to require cancellation. If the insurer give five days’ notice of cancellation, it must tender the full *pro rata*premium; if the assured seeks to cancel, he gets back a part premium, computed at short rates. (Richards Ins. [3d ed.] 721.) But here the refund of premium is not by any option or demand *inter partes.*It is because a defendant, having no longer any corporate existence, has by its civil death terminated all outstanding insurance, since the life of the contract necessarily expires with the extinction of the insurer. And it is upon this extinction by legal dissolution in the State of its creation and domicile, that plaintiff’s assignors base their causes of action. Hence, the sole ground of these attachment suits came into being by virtue of the exterritorial effect of the Pennsylvania decree dissolving and terminating the corporation.

While the insolvent insurer, once his legal *status*as insurer ends, leaves the insured entitled to a claim for a refund of the unexpired premium as a measure of his damages, no case in this State has been cited to us that thereby the insured is enabled to sue the insurer' for such damages. The right to such allowance in this State, as far as insurance for a fixed term is concerned, was derived from section 75 of title 4 of chapter 8 of part 3 of the Revised Statutes (2 R. S. 470). *(People*v. *Security Life Ins. & Annuity Co.,*78 N. Y. 114, 121.)

This statute treats of open and subsisting contracts of the corporation in the nature of insurances, or contingent engagements of any kind. The receiver, with the consent of the party holding such engagement, may refund a proportionate part of the consideration to the holder, or owner, when “it shall be deemed canceled and discharged as against such receivers.” This provision now appears unchanged as section 256 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28).

Apparently the assured had an option to take this refund of the unearned premium. In Pennsylvania such an option to demand refund of premium, exercised after the insurance company made an assignment for the benefit of creditors, *384creates a debt in liquidation, to come in ratably with the claims of other creditors. *(Fogerty*v. *Philadelphia Trust, Safe Deposit & Ins. Co.,*75 Penn. St. 125.)

The liability for these return premiums not being against, a living corporation, but arising upon its dissolution, also became a provable claim in liquidation. As far as the attached liability by the Warsaw Company for return premium is concerned, that also came into being through and as a result of the dissolution. Eeturn premiums from the Warsaw Company are a resource in the hands of the lawful successor of defendant, the Insurance Commissioner of Pennsylvania.

These attachments would divert funds intended to be shared hy all who may prove entitled to participate in the distribution. In a like effort by a New York creditor to attach property claimed by a New Jersey administrator, this court, Thomas, J., said: “The plaintiff is seeking by attachment to take from the trustee property appointed by law to the use of all creditors and to sell it as if the administrator had some essential property right in it which he could transfer to one creditor to the exclusion of others.” *(Bostwick*v. *Carr,*165 App. Div. 55.)

The dissolution of an insurance corporation has analogies to the administration of insolvent estates. *(Matter of Empire State Surety Co., 214*N. Y. 553; Id. 659.)

As to the new and special duties arising from corporate dissolution, especially the claim for unearned premiums for the risk after dissolution, it is not perceived how domestic creditors may treat the corporation as still alive and subject to suit, and serve process on its former agents, and attempt to found jurisdiction by publishing the summons against the defunct corporation. Such service was wholly void, and any judgment attempted to be entered upon it a nullity. *(Matter of Stewart,*39 Misc. Rep. 275; 40 id. 32; 86 App. Div. 627.)

Plaintiff has urged that the New York Superintendent of Insurance, not the Commissioner of Pennsylvania, is the proper party to make this motion, because the court has already made him a custodian of the defendant’s effects here. But this dla.im is without support, since throughout these proceedings, the two State Insurance Departments have acted in concord. The present order recites service and appearance in behalf of *385Mr. Emmet, who practically assented to the Special Term order now under review.

The order should he affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Carr, Rich and Putnam, JJ , concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order affirmed, with ten dollars costs and disbursements.

See Penn. Laws of 1911, p. 599; N. J. Gen. Corp. Law (Laws of 1896, chap. 185), § 53; N. Y. Ins. Law (Consol. Laws, chap. 28; Laws of 1909, chap. 33), § 63, added by Laws of 1909, chap. 300, as amd. by Laws of 1912, chap. 217, and Laws of 1913, chap. 29.—[Rep.