Wallach Cook, for plaintiff.
James, Schell Elkus, for defendants.
The capital stock note sued on was made by the defendants and delivered to the Equitable Mutual Fire Insurance corporation on its incorporation, agreeably to the direction of the statute that it "Shall remain as security for all losses and claims until the accumulation of profits invested as required by law shall equal the amount of the capital required to be possessed by stock fire insurance corporations," etc. 2 R.S. (Banks' 9th ed.) 1178, § 113. It was not the ordinary demand note, but one payable upon a contingency which happened when the plaintiff, as receiver, levied an assessment upon the note, and the Statute of Limitations commenced to run only from that time, so that its operation never affected the obligation. Raegener v. Medicus, 32 Misc. 591. As to the alleged payment of the note there are two legal objections: (1) There was no proof of express authority on the part of Ward Phillips to receive payment thereof, and the fact that he had power to issue policies and receive premiums thereon does not carry with it implied authority to receive payment of a capital stock note given under the statutory provision before referred to, when said note was never intrusted to his possession or control. Smith v. Kidd, 68 N.Y. 130; Crane v. Gruenewald, 120 id. 274; Central Trust Co. v. Folsom, 26 A.D. 40; Frank v. Tuozzo, id. 447. (2) An agent has no implied authority to collect a note or bond before it becomes due. Story Agency (7th ed.), § 98; Smith v. Kidd, supra; Fellows v. Northrup, 39 N.Y. 121; Doubleday v. Kress, 50 id. 410. The direction to find for the plaintiff was right, and the motion for a new trial must be denied, without costs.
Motion denied, without costs.