The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-10-06
Inc INSURANCE.

A Recent Decision OF the New YORK
Conrts That VIII Interest Holders Of
endowment Policies.
.Ibany dispatch to the New York
Journal of Commerce. A unanimous
Joc,slon was handed down in the court
=, ,ppeals this afternoon In the matter,
n ne appeal Of the Equitable Life As
snrsnce society from an order and
Judgment obtained by Emil Greer, the
RESPONDENT. in the Appellate Division
NJ the supreme court, in the second de-
n,r,mept. This decision, Of great tn-
,ercst to policy holders and of great
Importance to all companies engaged in
tbe business of assuring lives. was
written by Justice Martin. his asso-
cIates concurring. The appeal was ar
pp.d at Saratoga Just before the sum-
ner recess, William B! Hornblower and
charles B. Alexander appearing for the
Eoutable Life and Dickinson W. Rich
ards for Emil Green.
The litigation arose from the fact
that on July j, 1859. Emil Green. of
Nsw York, insured his life in the Eduit-
nile Life Assurance Society In the sum
If 10000 by form Of policy styled an
endowment. having a period OF fifteen
yenrs II was an annual dividend pol
icy. on May 2. 1887, the policy matur-
I'd and the society paid over to the as
sured the sum Of 10000 and dividends
which accumulated to the amount OF
he settlement, claimed that the So
ciafy was holding back for itg own use
+, ,,6rtIsn OF It's surplus and sued for q
Crrther dividend of S7,9S7. To this COM
plaint the society demurred, setting
forth that the plaintiff did not state
facts sufficient to constitute a cause
for action" Justice Joseph F. Daily sus-
tanned the appeal. reversing the dects-
ion OF the trial Judge, and Justice Good
rich dlssented. From this decision the
Equitable appealed In June last, and to-
day Justice Martin wrote the opinion.
The opinion Is a somewhat volumi.
nous document. II 10 clear and decisive.
IL confirms the opinion Of trial Judge
Daly and literally quotes Justice Good
rich, In the main the court holds that
the plaintiff, Emil Greer, cannot win on
the equity side OF the court in conse-
0uence OF the fact that the attorney
general did not bring the action, as
statutes provide that all suits inVolv-
Ing an accounting must be brought by,
or with the approval Of, the attorney
general. and further, that he cannot
win at law because, first, he Is bound
by the terms Of his policy, and sec
ond. by the statutes. Justice Martin
says: "At the threshold Of this eXam-
nation It Is proper to observe that un-
der the provisions OF section 56 OF the
Insurance law the plPintin cannot
maintain an action Of proceedings for
an accounting or enjoining, restraining
or interfering with the prosecution OF
the business OF the defendant or for
the appointment of a receiver, except
upon the application or approval Of the
attorney-general."
Justice Martin then quotes the stat
ute aud observes: IF tlTiAuction Is to
be regarded as an action for an ac-
counting or as interfering with the
prosecution of the defendants busi-
psss. Il Is prohibited by statute. as
there Is no allegation, claim or pretense
ol any application or approval by the
attorney-genernl." Justice Martin
tfen proceeds to examine the COM
p'1int rs to whether II states facts
sufficient to constitute cause OF nc
ton. He says: THE point to be de-
term'rsd rs whether the fncts stated
aye sufficient to entltle the plnlntlff to
rCrovcr In nm action at law upon the
noIIcy as IN instrument for the pay
Tent 0f money, or to recover against
the defendant for breach of It's con
tract" 'hh.-
In this examination no says: by the
terms or the plalTtiT's Contract he ex.
p-1ssly ratified and accented the prIn-
cities and methods which were from
tine to time adopted bEithr defendant
for the dlGtrIbutipn Of suchsrr3lus. This
plaintiffs Claim that the whole surplus
ahould be distributed cannot be sus'
tanned II II is In conflict with the pro-
Visions al the contract between tn"
parties without making n new contract
for them. which the court will not do.
II lE to DO observed that the agreement
was that the plnlntift should participate
not n the whole surplus. but in the
distribution Of the surplus, or, in other
wo-Gs. in the surplus which. according
TO its methods and principles. was to be
distributed"
Interfering to the opinion written by
Justice woodward, Justice Martin re-
marks: 'We-find nothing in the record
10 sustain the suggestion Of the learned
appellate division to the effect that the
minds OF the parties did not meet as to
this provision in the contract. It was
clearly a part Of It. which was pre-
sumptively v "'eTstood and deliberately
entered into by them" m
In regard to the surplus. the court
held that In Its opinion until n distri-
button was made by the officers or
managers OF the defendant. the plain
tin had no such title to any part Of the
surplus as would enable him to main
tain an action at law for Its recovery.
We think the principle which controls
the disposition Of surplus earnings OF
q stock corporation Is applicable here.
In these cases It hRs often been held
that until dividends have been declared
n stakeholder had. no right Of action Mt
law to recover any part Of the fund APP
phcabie for that purpose In sense.
all the funds IN the possession OF mu-
nal Insurance company over and
above It's immediate and present lia-
hilitIes. may be regarded as surplus;
yet It is not for that reason understood
ns belonging to or to be,immedlately
distributed among the policy holders,
either by them or by the company. The
word surplus. like the word liabilities,
has special meaning, which has arts
cn In this branch Of the insurance bust
moss. Such surplus could he held by
ihem not only for the protection OF
their policy holders. but as mn induce
ment to the public to insure. In the
absence Of fraud all the acts Of the OF.
hcsfs are conclusive" E=1,