Opinion
Reargued March 14, 1933
Decided April 28, 1933
Wendell P. Barker, Daniel A. Dorsey and Walter J. McNichols for appellant. John M. Downes, Alfred L. Green and Jess H. Rosenberg for respondent.
Hartwell Cabell as amicus curiae.
A motion for reargument having been granted herein, and it appearing that the assets of the Northern Insurance Company by the decision of this court dated February 10, 1931, entered on the opinion of the court (reported in 255 N.Y. 433), were authorized and directed to be delivered to the directors not constituting a quorum upon their giving a bond provided by said decision of this court, and that such conservators complied with the conditions of the decision by giving such bond; and that such conservators being unwilling to act, have attempted to relieve themselves from the performance of their trust by making a general assignment for the benefit of creditors to the Bank of Manhattan Trust Company which is not authorized by such decision,
And it also appearing that the surplus funds of the Northern Insurance Company referred to in said decision are still in the hands of the Superintendent of Insurance, awaiting the further order of this court,
Ordered, that the decision herein be modified by providing that the said surplus funds may be turned over to the Bank of Manhattan Trust Company and a receipt from said Bank of Manhattan Trust Company may be taken by the Superintendent of Insurance as a good and valid receipt and acquittance for such surplus funds with the same force and effect as if the conservators had not qualified to receive the surplus funds under the decision of February 10, 1931, and the said Bank of Manhattan Trust Company had been named under the second provision of said decision to receive said funds as agent or depositary in the event of the failure of the directors to qualify, upon the stipulation of the insurance company and said trust company that the funds will not be withdrawn except upon the order of a court of competent jurisdiction.
Ordered, that said decision be otherwise ratified and confirmed.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and CROUCH, JJ., concur; HUBBS, J., not voting.
Judgment accordingly.