#### Louis C. Raegener, as Receiver, Etc., Plaintiff, *v.*Henry W. Medicus et al., Defendants.

(Supreme Court, New York Trial Term,

October, 1900.)

1. Bills and notes — A demand capital stock note given to a domestic mutual life insurance company and made subject to future assessments is not due until the liability has become fixed — Statute of Limitations.

The Statute of Limitations is not a defense to the makers of a capital stock note, given in 1894 to a domestic mutual life insurance company and now held by its receiver, payable on- demand and therefore presumably due at once, where the statute, under which it was given and which was incorporated in the note by reference thereto, provides, in substance, that such a note should remain as security for losses and claims of the company until the accumulated profits should equal the cash capital required by statute, the liability decreasing as profits accumulated, and further providing that the note-should be assessable for losses, that notice of assessment and demand therefor should be given and made of the makers, and that, upon their failure to pay in thirty days, suit might be maintained against them.

Where the receiver, in 1896, levied an assessment for losses and properly gave notice and made demand, it was held that, not until thirty days thereafter did the action accrue, and therefore the six year Statute of Limitations was not a defense to an action brought by him in 1900.

2. Same — Negotiability.

Such a note is payable upon a contingency and is not negotiable.

Action on capital stock note made by defendants.

Wallach *&*Cook, for plaintiff.

Manice, Abbot *&*Perry, for defendants.

McAdam, J.

The action is on a capital stock note made by the defendants to the Equitable Mutual Fire Insurance Corporation of New York, February 8, 1894, prior to its organization, whereby *592"the defendants on demand promised to pay $400 to the said corporation, “ subject to the conditions and obligations of *‘*The Insurance Law ’ of the State of New York (Chap. 690, Laws of 1892) and the by-laws of the said corporation printed on the back of this note.” More than six years elapsed after the date of the note before this suit was brought, and the question is, whether the claim is barred by the Statute of Limitations.

If the note had been an ordinary one, payable on demand, the statute would have undoubtedly begun to run from its date. Wheeler v. Warner, 47 N. Y. 519; S. C., 7 Am. Rep. 478; De Lavallette v. Wendt, 75 N. Y. 579; McMullen v. Rafferty, 89 id. 456. Does payment subject to the conditions and obligations of the Insurance Law and the company’s by-laws, printed on the back *of*the obligation, except this case from the general rule?

The provisions of the Insurance Law printed on the back of the mote in question, and which are here relevant, are as follows: “All capital stock notes of any domestic mutual fire insurance corporation shall remain as security for all losses and claims, until the accumulation of profits invested as required by law shall equal the amount of cash capital required to be possessed by stock fire insurance corporations, the liability of each note decreasing proportionately as the profits are accumulated.” § 113. “ The directors shall, as often as they deem necessary, after receiving notice of any loss or damage by fire sustained by any member, and ascertaining the same, or after the rendition of any judgment against the corporation for loss or damage, settle and determine the sums to be paid by the several members thereof as their respective portion of such loss, and publish the same in such manner as they shall see fit or as the by-laws shall have prescribed. The sum to be paid by each member shall always be in.proportion to the original amount of his note or notes, and shall be paid to the officers of the corporation within thirty days next after the publication of such notice. If any member shall, for the space of thirty days after such publication and after personal demand for payment shall have been made, neglect or refuse to pay the sum so assessed upon him, the directors may sue for and recover the whole amount of his note or notes, * * * but execution shall only issue for assessments and costs as they accrue, and every such execution shall be accompanied by a list of the losses for which the assessment is made.” § 116. And an extract from the company’s by*593laws, printed on the back of the note, prescribes the manner, method, and amount of the assessment.

That the Statute of Limitations shall begin to run in favor of the debtor in any case, it is necessary that a present cause of action shall accrue in favor of the creditor. Gilbert v. Taylor, 148 N. Y. 298. Can it be said that a cause of action accrued in favor of the corporation against the makers of the note on February 8, 1894, the date of the note? Assuredly not. The terms of the statute incorporated in the contract provided that the note should remain as security for losses and claims until the accumulated profits should equal the cash capital required to be possessed by stock fire insurance corporations, the liability decreasing as the profits accumulated; that, when necessary, there should be an assessment to pay losses; that notice of such assessment should be given to the maker, and personal demand made upon him; and that, upon failure to pay the assessment after the expiration of thirty days from such notice and demand, a suit was maintainable on the note. It is apparent, therefore, that the losses which the company was unable to pay with cash receipts were first to be ascertained, and with assessment, notice and demand, were conditions precedent to suit on the note. On April 30, 1896, the plaintiff, upon whom the power and duty of making assessments devolved by law (Savage v. Medbury, 19 N. Y. 32), made and levied an assessment of sixty per cent, upon the note in suit, and on the following day gave notice to and made personal demand upon the makers for the amount of said assessment. In thirty days after such notice and demand, and not until then, did a cause of action accrue on the note. Howland v. Cuykendall, 40 Barb. 320; Bigelow v. Libby, 117 Mass. 359; Matter of Slater Mut. Fire Ins. Co., 10 R. I. 42; Angell Lim., § 113. In this respect the case differs essentially from White v. Haight, 16 N. Y. 310. There the note was given under a statute (Laws of 1849, chap. 308), which provided (§ 5) that it “ shall be deemed valid, and shall be negotiable and collectible for the purpose of paying any losses which may accrue or otherwise.” That note was payable absolutely and at all events; this note was payable upon a contingency, and was in no sense negotiable. Laws of 1897, chap. 612, § 20.

There must be judgment for plaintiff.

Judgment for plaintiff.