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Andre v. Beha

240 N.Y. 605 Court N.Y. Decision date 1925-04-07 English

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p. 605
Nicholas Andre, Suing on Behalf of Himself and Other Stockholders of Northern Insurance Company of Moscow, Appellant, v. James A. Beha, as Superintendent of Insurance of the State of New York, Respondent, and Mortimer W. Byers et al., as Trustees, et al., Appellants.
(Argued March 4, 1925;
decided April 7, 1925.)

Headnote

Insurance corporations — action to recover property deposited by foreign insurance company with Superintendent of Insurance for protection of policyholders — managing director not real party in interest and may not maintain action as such — no cause of action made out by stockholder suing in behalf of corporation where no waste of corporate assets is threatened.
Andre v. Beha, 211 App. Div. 380 , affirmed.
Appeal from a judgment, entered February 13, 1925, upon an order óf the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff and defendants, appellants, entered upon the report of a referee and directing a dismissal of the complaint. The action was brought to secure possession on the part of the Northern Insurance Company of Moscow of certain funds and securities deposited by it with the Superintendent of Insurance of the State of New York and the said trustees, under and pursuant to the provisions of section 27 of the Insurance Law, as are not required by the said statute to be retained for the protection of policyholders and creditors.
John W. Hogan, Paul Bonynge and Wendell P. Barker for plaintiff, appellant.
Mortimer W. Byers for trustees, defendants, appellants.
William H. Harding and Meier Steinbrink for Northern
p. 606
Insurance Company of Moscow et al., defendants, appellants.
Albert Ottinger, Attorney-General (Edward G. Griffin of counsel), for respondent.
Frederick B. Campbell and Paul C. Whipp, amici curiœ.

Plaintiff as managing director for Northern Insurance Company of Moscow is not the real party in interest and may not maintain this action as such. (Spencer v. Standard C. & M. Corp., 237 N. Y. 479 .)

As a stockholder suing in a representative capacity in the right of the corporation he has not made out a cause of action since no waste of corporate assets is threatened. (Howes v. City of Oakland, 104 U. S. 450 .)

The judgment should be affirmed, with costs.

His cock, Ch. J., Cardozo, Pound, McLaughlin and Lehman, JJ., concur; Crane, J., dissents; Andrews, J., not voting.

Judgment affirmed.

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