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Ogden v. Raymond

3 Abb. Ct. App. 396 Court N.Y. English

Delivered by Wright, J.

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p. 396
OGDEN v. RAYMOND.
December, 1863.

Headnote

Affirming 5 Bosw. 16 .
In an action on a note, the defense that it was transferred by a moneyed corporation without a vote of the directors, contrary to 1 S. 8. 591, § 8, is not available where it is alleged in the complaint, and not denied by the answer, that the note was duly indorsed, transferred, and delivered by the corporation.[1]
It seems, that such defense is not available in an action on a single note for less than one thousand dollars, although it was transferred as a part of securities together exceeding that sum.
Samuel G. Ogden, Jr., sued William M. Raymond and another, in the New York superior court, on a promissory note made by them, dated October 4, 1855, for seven hundred and fifty dollars, «payable to the International Insurance Company or order, and indorsed by the president thereof. On the trial it appeared that the note was taken by Samuel G. Ogden, Sr., from the company, in good faith, and for a valuable consideration, at the same time with a number of other notes, amounting together to about fifteen thousand dollars. Evidence to show that the president of the company had indorsed the note
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without being authorized by a resolution of the directors, was excluded, as the fact that the note had been duly indorsed, transferred and delivered, was alleged in the complaint and not denied in the answer; and judgment was given for the plaintiff.
The superior court, at general term, sustained the judgment, on the ground that Ogden, Sr., was a holder for value. Reported in 5 Bosw. 16 .
Peter 7. Cutler, for defendant, appellant.
G. W. Stevens, for plaintiff, respondent.

By the Court.

The case of Ogden v. Andre, decided by this court[1] at the last March term, in its principal features and in the questions raised by the appellants, was like the present one. Both actiohs were upon subscription, or advance premium notes held by the International Insurance Company, and transferred by such company to Samuel G-. Ogden, Sr., as security for a loan of nineteen thousand dollars, made by the latter to the company to meet its liabilities. There was no evidence in either case tending to show that the senior Ogden was not a Iona fide holder of the notes, nor that they had not been negotiated by the insurance company in the course of business; and in the present case these facts were not put in issue by the pleading. • In both cases the transfer of the notes was made by the president of the company without any previous resolution of the board of trustees; but in this case the question of the authority of the officer to act without such resolution is not involved. The complaint averred that the note was duly indorsed, transferred and delivered to the plaintiff by the International Insurance Company, and that fact was not denied by the answer of the defendants.

In the case of Ogden v. Andre, it was held that the insurance company had authority to transfer the notes to Ogden; and that such transfer was not invalid as being in contraven

* In that case, this court unanimously affirmed the judgment in 4 Bosw. 583 ,

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tion of the provisions of section 8 of article 1, title 2, chapter 18, part I. of the Revised Statutes. 1 R. S. 591, § 8. The insurance company was authorized by its act of incorporation to pledge or negotiate the notes for money borrowed (L. 1844, c 115, § 11; L. 1855, c. 295); and the provision of the Revised Statutes has no application to the case of a transfer to a bona fide holder for a valuable consideration. The provision of the Revised Statutes is that “ No conveyance, assignment or transfer not authorized by a previous resolution of its board of directors shall be made by any such corporation of any of its real estate, or of any of its effects, exceeding the value of one thousand dollars ”; but this section shall “ not be construed to render void any conveyance, assignment or transfer in the hands of a purchaser for a valuable consideration and without notice.” 1 R. S. 591, § 8. If the section has any application to the transfer of a promissory or subscription note bought by an insurance company in the course of business, to earn money to meet its liabilities, this case does not fall within it. Ogden, the transferee, was a bona fide holder.

Besides, in this case the property transferred did not exceed the value of one thousand dollars. It was the defendants’ promissory note for seven hundred and fifty dollars, which had not matured at the time of the negotiation.

The judgment of the superior court should be affirmed.

All the judges concurred, except H. R. Seeded and Emott, JJ.

Judgment affirmed, with costs.

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