
    Theodore W. Stone, as Receiver of The Electric Mutual Casualty Association of Philadelphia, Pennsylvania, Respondent, v. Penn Yan, Keuka Park and Branchport Railway, Appellant.
    Fourth Department,
    March 4, 1908.
    Casualty insurance.— when insurer not doing business here — necessity for assessment — decree of foreign court prima facie evidence of necessity..
    Where the assured, resident of this State, made application for its policies at the home office of the insurer in a foreign State, and the policies were there executed and sent by mail to the assured, the company did not transact the business of insurance in this State within the meaning of the Insurance Law, and it may sue to recover assessments although never authorized to do business here.
    Where the policies issued by a foreign casualty insurance company expressly permit the directors to .make assessments upon those assured, an assessment made by the directors, or by the receiver of such corporation under the direction of the court, is, in an action to compel payment of such assessment, prima facie evidence that the assessment was neccssaty and proper in amount.
    Appeal'by the defendant, the' Penn Yan, Keuka Park and Branohport Bailway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the. 22d day of November, 1906, upon the report of a referee.
    
      Charles A. Hawley and Calvin J. Huson, for the appellant.
    
      Thomas Carmody, for the respondent.
   Kruse, J.:

The plaintiff, as receiver of the corporation which issued three casualty insurance policies to the defendant street railway company, brings this action to recover the unpaid premiums thereon and assessments made thereunder against the defendant. The insurance company was an assessment accident corporation, organized under the laws of the State of Pennsylvania, having its home office in. that State, where the policies were issued. The defendant is a street railroad corporation, organized under the laws of this State, operating an electric railroad between the villages of Penn Yan and Branch port in the county of Yates.

Three policies were issued by the insurance company to the street railroad company, under the following circumstances: The defendant’s treasurer resided in the State of Massachusetts; the application for the first policy came from the treasurer at Penn Yan, N. Y., to the insurance company at its home office in the State,of Pennsylvania; the insurance company thereupon sent to the defendant at Penn Yan, N. Y., the insurance policy. The applications for the remaining two policies were sent by the defendant’s treasurer from Worcester, Mass., to the insurance company at its home office in the Sfate of Pennsylvania, and the policies were sent by the insurance company to the treasurer of the defendant at Worcester, Mass. The policies of insurance were executed by the president and secretary of the insurance company at the home office in Pennsylvania. The applications and policies were all sent by mail.

The premium on the policies was $600, of which the defendant paid $300, leaving unpaid the sum of $300. Each of the policies contained the provision that the rate upon which the premium was based was three per cent of the gross traffic receipts of the defendant, and “ if the fixed premium rate charged by the Association shall be insufficient to pay losses, the directors may charge a pro rata additional sum to make up said deficiency, but in no event shall the total amount of premium and liability * * * exceed five per centum of the gross traffic receipts of the assured.”

One policy was issued in August, 1897; another in September, 1898, and the third in September, 1899. In. 1900 the insurance company became insolvent and was so adjudged by the Court of Common Pleas of Dauphin county, Penn., the plaintiff being appointed receiver thereof. On the 20th day of July, 1903, the court which had adjudged the insurance company insolvent and appointed the plaintiff as receiver ordered an assessment to be levied upon all the members, including the defendant, who held assessable policies in the insurance corporation, the assessment being two per cent upon the gross traffic receipts upon the three policies issued to the defendant, amounting in the aggregate to $1,139.33. Notice of the assessment was served upon the defendant, but it has failed to pay the same or the $300 unpaid premium.

The insurance company never complied with the requirements of the statutes of this State to enable it to do business in the State, and it is contended on behalf of the plaintiff that it never did any business within the State ; that the contracts of insurance in question were made without the State of New Pork. The defendant challenged the validity of the assessment as well as the right to maintain the action in the courts of this State. The referee decided adversely to the defendant, and directed judgment in favor of the plaintiff. We agree with the learned referee that the defendant did not transact the business of insurance in this State within the meaning of the Insurance Law. The business of issuing the policies in suit was done out of the State, as the defendant had the right to do, and we think the plaintiff may resort to the courts of this State to enforce the same against the defendant.

As regards the assessments made under the direction of the Pennsylvania court against the defendant upon these policies it need only be stated here that a similar question was involved in the case of Hammond v. Knox (125 App. Div. 9), decided at the present term of court, and was very fully discussed in an opinion by Mr. Justice Spbing. In that case the policy was issued by a Massachusetts ^corporation, and a receiver appointed by a court of that State, an assessment being directed under proceedings similar to that had in this case. It was there held that such an assessment was valid, and binding upon the insured. In this case the judgment directing the assessment to be made is accompanied by proof and papers, which, I think, abundantly show the necessity for the assessment, and that the amount thereof was not unreasonable. The policies themselves expressly permit the directors to make an assessment. The receiver acted in the place of the directors, and the assessment was made by the direction of the court. Such an assessment, whether made by the directors themselves or by the direction of a court, ought at least to be prima facie evidence of the necessity therefor and of the proper amount thereof.

The questions involved in this case are very exhaustively discussed by the learned referee in his opinion, and require no further discussion here. We simply add that we think the case was correctly disposed of by the referee, and that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs. 
      
      See Laws of 1892, chap. 690, as amd.— [Rep.
     
      
       See N. Y. Supr. Ct. Cases & Briefs of Counsel (N. Y. State Law Library), vol. 6856, No. 2, p. 74 et seq.— [Rep.
     