#### Oliver Harriman, Joseph W. Harriman, J. Borden Harriman and John N. McCullough, Respondents, *v.*Calvin O. Geer and Ruth Noyes Heinze, Appellants.

(Supreme Court, New York Special Term,

January, 1912.)

Appeal — Bonds and undertakings on appeal — Form and sufficiency.

The purpose" of section 184 of the Insurance Law is to relieve a surety company from attending for an examination through its officers whenever its undertaking is excepted to, and at the same time afford adequate protection to the person for whose benefit the undertaking is given; and a bond on appeal executed by a surety company duly authorized to transact business in this State and which some years ago filed, in the county in which its principal place of business is located, a sworn statement of its financial condition, may be accepted by the court in its discretion without further justification.

The court upon a claim that the present condition of the surety company is different from- what it was when its sworn statement was filed may order a new statement to be filed and may also require the surety company to submit to an examination before a referee as to its" solvency, the exceptants to the bond to pay the costs of the reference if unsuccessful in their contention.

The sworn statement of the surety company; as a justification, cannot be regarded as insufficient upon a claim that it has large outstanding contingent liabilities in this State and practically no assets, as, by section 26 of the Insurance Law, it is required *219to Jceep on deposit in this State or in the State of its incorporation the same amount and character of securities which a domestic insurance company is required to deposit with the Superintendent of this State.

Exceptions by respondents to undertaking given on appeal.

Bullowa & Bullowa, for appellants.

Edward M. Grout and Paul Grout, for respondents.

■ Lehman, *J.*

The plaintiffs have excepted to a surety company bond given by the defendants on appeal. The attorney in fact of the surety company appeared at the examination but most of his testimony consists of mere conclusions or is too vague to be of any value as justification. I think, however, that it appears sufficiently and is conceded by the plaintiffs that it has been authorized by the Superintendent of Insurance to transact business in this State and that some years ago it filed in this county, where its principal place of business is located, a sworn statement of its condition. This sworn statement is sufficient justification under section 184 of the Insurance Law to permit me in my discretion to accept the bond without further justification.- “The evident purpose of this provision was to relieve surety companies from the necessity of attending for an examination through its officers whenever its undertaking i-s excepted to, and at the same time afford adequate protection to the person for whose benefit such undertaking is given.” Haines v. Hein, 6Y App. Div. 389. If the plaintiffs claim that the condition of the company is, perhaps, now different from what it was when the sworn statement was filed, the court has authority to order that a new sworn statement be filed and may also require the company to submit to an examination as to its solvency by a referee. The plaintiffs, however, do not at present urge any claim that the company is not solvent, and it would obviously be unfair to order the company to submit to a general examination, unless such claim is made upon substantial grounds, or the plaintiffs stipulate to pay the costs of a reference if they are unsuccessful in showing that *220the bond should not be accepted. The plaintiffs’ claim at the present time is only that the surety company has large outstanding contingent liabilities in this State and practically-no assets, and that for this reason the justification should not be regarded as sufficient. With this contention, I do not agree. The Legislature has provided as security for the obligations of domestic insurance companies the deposit of securities with the Superintendent of Insurance and 'by section 26 has further provided that insurance companies -incorporated under the laws of any other State *“*shall keep on deposit with the superintendent of insurance of this state, or with the auditor, comptroller or general fiscal officer of the state by whose laws it is incorporated, the same amount and character of securities which a like domestic corporation is required to deposit with the superintendent of insurance of this state.” The 'Legislature has enacted no provisions that surety companies, either domestic or foreign, should keep any other securities in this State, but clearly intended that this safeguard should be regarded as sufficient. I will, therefore, neither order any further examination on this point nor refuse for such reason to accept a justification which is otherwise'sufficient.

Ordered accordingly.