(22 Misc. Rep. 747.)

#### In re KEOGH.

(Supreme Court, Special Term, New York County.

July, 1897.)

Bonds—Justification — Foreign Surety Companies—Presumption of Solvency.

The justification of a foreign surety company, as surety on proposed bonds to discharge a certain lien, must be deemed sufficient, over an objection which presented no facts sufficient to overcome the presumption of its solvency, where it appeared that such company had been duly authorized to transact such business, and had been found solvent on an examination pursuant to Laws 1893, c. 720, as amended by Laws 1895, c. 178, providing therefor, and had subsequently filed a sworn statement showing that such condition continued.

Application by Thomas W. Keogh to discharge a lien. On objection by lienor to the justification of the City' Trust, Safe-Deposit & Surety Company of Philadelphia as surety on the proposed bonds of applicant. Bonds approved.

Townsend & Mcllvaine, for the motion.

Dayton & Swift, opposed.

SMYTH, J.

The objection to the sufficiency of the amount fixed by this court as the penalty of the bonds proposed to be given in these *999matters cannot be sustained. The lienor’s remedy, if any, Is by motion to increase the amounts so fixed. The objection to the justification of the City Trust, Safe-Deposit & Surety Company of Philadelphia, the surety upon said bonds, in my opinion, is not well taken. It appears, by the examination of the vice president and general manager and agent of the company in this city and state, that the company has been duly authorized by the insurance department of this state to transact the business of the fidelity and guaranty insurance therein; said company having complied with the laws of this state. It further appears that it has submitted to an examination, before a referee appointed by this court, as to its solvency, pursuant to the provisions of chapter 720, Laws 1893, as amended by chapter 178, Laws 1895, and that upon such inquiry and examination it was found, and so reported to the referee, to be solvent. The report of the referee was duly confirmed by this court, and subsequently to the confirmation of the referee’s report the company has filed a sworn statement showing its condition down to the 30th of April, 1897. By this statement it appears that said company at the date thereof was perfectly solvent, and no suggestion is made that its condition is at this time otherwise than solvent. By section 4 of the act of 1893, as amended by section 2 of the act of 1895, it is provided that such statement and examination, when filed with the clerk of this county, shall be received and considered as given in justification upon any and all bonds and undertakings or other instruments executed or guarantied by such company; and, it appearing by the statements and examination of the company that it is solvent, it seems to me that, before I would be justified in refusing to approve and accept the bonds in question, sufficient facts should be presented by the objections to overcome the presumption of the present solvency of the comnany, and to call upon the court, in the exercise of its discretion, to direct further justification, either limited to any particular matter relative to the condition of the company, or generally. No such facts having been presented, the justification must be deemed sufficient, and the bonds accepted and approved.

Ordered accordingly.