People v. Mutual Trust Fund Life Ass'n — 21 Abb. N. Cas. 279

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p. 279

PEOPLE v. MUTUAL TRUST FUND LIFE ASSOCIATION.

N. Y. Supreme Court, First District, Chambers ;

March, 1887.

Headnote

Trial; mode of.] An action brought by the attorney-general for the dissolution a of Life Insurance Association, organized under L.

p. 280

1883, c. 175, is one triable by a jury, under section 13* of that act.

Same.] And a motion for an injunction and the appointment of a receiver will be denied until the right to a dissolution is determined by a jury trial.

Motion for an injunction and the appointment of a receiver.

This was an action, brought by the attorney-general against the defendant, a corporation organized under L. 1883, c. 175, and authorized by law to make insurances, to procure a judgment dissolving the corporation and forfeiting its corporate rights and franchises, on the ground of insolvency.

* L. 1883, o. 175, § 13, provides as follows:

“ All such corporations, associations and societies, together with their books, papers and vouchers, shall be subject to visitation and inspection by the superintendent of the insurance department, or such person or persons as he may designate. If said superintendent shall be of the opinion that such corporation, association or society shall be restrained from doing business, he shall report the same, with the facts upen which such opinion is based, to the attorney-general, whose duty it shall be, if he shall be of the opinion that the facts warrant such report, to apply to the supreme court at a special term thereof, within the judicial district in which the principal place of business of such corporation, association or society within the State is located, for an order requiring the officers of such corporation, association or society to show cause at a reasonable time and place within such district, why such corporation, association or society should not be restrained from continuing to transact business, with power to the said court to adjourn the hearing thereof, from time to time, not exceeding, however, sixty days in the aggregate. Such corporations, associations or societies shall be entitled to be heard, and to a trial by jury of the facts stated in said report, and to examine papers and witnesses under oath in the usual mode of trials of actions, and the verdict of said jul-v shall be conclusive upon the propriety of restraining such continuance of business upon such report and opinion. And judgment shall be entered upon such verdict in the same manner as in ordinary actions under the Code of Civil Procedure.

p. 281

A motion was made by the Attorney-General for an injunction and the appointment of a receiver.

The facts are sufficiently stated in the opinion.

Denis O'Brien, attorney-general, for the motion.

Chapter 175 of the Laws of 1883, which is entitled “ An act to provide for the incorporation and regulation of co-operative associations, life and casualty associations and societies,” provides that in proceedings to restrain such corporations, etc., from doing business, etc., i( such corporations, associations or societies shall be entitled to be heard, and to a trial by jury of the facts stated in said report, and to examine papers and witnesses under oath in the usual mode of trials of actions, and the verdict of said jury shall be conclusive upon the propriety of restraining such continuance of business upon such report and opinion. And judgment shall be entered upon such verdict in the same manner- as in ordinary actions under the Code of Civil Procedure.” (See section 13).

The association against which this proceeding is taken is confessedly one of those referred to in the act just cited. It is quite clear, therefore, to my mind, that it is entitled to .a trial by jury, under the section of the act just quoted, of ■the matters and things alleged in the petition, and that no injunction should be granted, or receiver appointed, until those questions have been passed upon by a jury. The -.statute in question is a peculiar one, but I have no alternative but to follow its provisions.

The motions for an injunction and the appointment of a ¡receiver must therefore be denied, and an order will be granted placing the cause upon the circuit calender at an ■early day, in' order that it may be disposed of, under the provisions of section 13, chapter 175, of the Laws of 1883.

■Ordered accordingly.