New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-04-03

SUPREME COURT-CIRouIr-ApH i.-Before Judge
DAVIES.

John berry, receiver OF t"e Hnss Ye"J' "e
This action is brought by toe plaintiff az receiver
70 recover one-hAl OF an alleged SUBSCRIPTION OF tne
defendants 10 the capital stock of the Atlas Insurance
Company. That subscription bears date Nov. 8 1873,
and is for 81 0O0 payable in Fix and twelve mouths,
less five per cent and this suit is Brought to recover
the sum Of $475, due thereon mev ii, 1896.
The complaint alleges that the Atlas Fire Insurance
Company was an incorporated insurance company on
the mutual plsn organized and doi1g business IN tde
CITY of New.York and became iosolvent aud on the
Ilth of March, 1885, the plaintiff was appointed re-
cever of lis property and effects.
That in pursuance of resolution OF the Board OF
Directors Of the Company the Tfustees thereof caused
to be prepered and circulated subscription for sigma
tn, iu the wor6s following:
We the Subscribers hereto agree 20 sve TO the Atlas Ma
tusl Insurance Company our notes IN saanie Ua fI S
set opposite names respectively being understood
that In consideration thereof the subscribers are TO be allowed
by the Compspy the msrty OF their notes five cent
the amount thereof This subscription 10 toward tne
q Trustees Of ii. date and binding untl the
Of $500 oOo l. subscribed New YOIt; NGy 8, lSss"
The resolution OF November ., 1919, referred 10 III
the subscription, is as folows:
Op motion 1t rsso,red That subscription in the Of
ssS.epon. 70 be binding when ssoCoCc n subscribed
eludine the sc, ocO already subscribed"
On the 30th of October, 1855, the Trustees adopted
THAT ,ny arrangement made BY the Finance tee In
Isyns sns5s 70. @.S the he pay ns s OI
be provided they shall make themselves or their friends
CONFIDENTIAL in any equal In Ill the smosnt Of
e4O already subscribed by the friends OF the company Tor us
relief"
The ccmplsnt further sles that the defendants, on
the Sth November, 1885, subscribed 70 the said SUB
scription the rum OF Ell 00 and that the sad OF
$500 900 was suoscroe1n accordance with tie terms
OF said resolution and of said subscription.
The plaintiff further alleges that the defendants hal
not given their notes in accordance with said suoscs
ton and that there due thereon the said sum oil
&475 aud interest from M sy ii, 1886.
The defendants in their answer, deay that the sad
FUN OF $500 600 was ever saescroei 10 accord. ace
with the terms of said resolution OF Sc 81 1scrpe m
The dsfendznts further a.eSe that the said sum OF
$780, % subscribed IN good f,t1; that may
OF said subscriptions were merely ninsl that toe y
were made vita the understanding that they no.
10 be binding: that the officers of the Company SIDE
subscriptions which merely nom'osl and made
for the turpose OF pvocarns from bOa0 rte suos ocrs
their not in accordance with such SUBSCRIPTION.
q. q. Ecan FOR plaintiff, C. ID ssn for detcndsot
DAVIES J.-The terms OF the subscription aud the
ee'imoDy ccnclusively estsbsh the posion tbs, the
subscriptions Of the defendants not 20 be bidding
pptss iDe sum Of $300,O00 w.s sc'usiy subscribed.
J. wss incumbent on the psinuf as esss nl1 to his
right 70 recover TO establish the ulfmen' Of the c1a
dItion precedent thst this had been sIoscribel
and for q is purpose he prodaced AM proved The sub
stnptio, book
Che Court after stating he fsc:s mere 10 detail .pd
dscuiue the case ia ali It's Aspects cyRc,u 1ed very
eiaborsts opinion a. follows:
Il am therefore constrained 70 hold, in aay aspeo:
in which have regarded this case. hst the coad'ieu
precedent which the parties agreed = and :ed n
writing, snd which Tas made part o. the sgrsemea'
mon which the dsfend ants nov soed, VIZ: tn7'
the same was no. 10 Re bniiog ur-'l the sun OF
430t OO0 is sRbsc;i7ed ass not besn fuded srd "a
subsequently, egs, sbii'y hss beer cre.'et ssa1s,
the o. fenosnts Dy signing the same. Judgment i'f
lGfes5tNts.