
    Louis C. Raegener, as Receiver, Etc., Plaintiff, v. Morris A. Tynberg et al., Defendants.
    (Supreme Court, New York Trial Term,
    October, 1900.)
    1. Bills and notes — Demand capital stock note, payable on a contingency — Statute of Limitations.
    A demand capital stock note delivered to a mutual fire insurance company, upon its incorporation, pursuant to a statute requiring the note to remain as security for all losses and claims of the company until the accumulation of profits invested as required by law should equal the amount of capital required to be possessed by stock fire insurance corporations, is not due at once, is payable upon a contingency, and the Statute of Limitations begins to run against it only from the time when an assessment was levied upon it.
    2. Same — Agent’s right to receive payment.
    An agent of the company, with power to issue policies and receive premiums therefor, has no implied authority to receive payment of such a note where it was never intrusted to his power or control; nor can he, in any event, collect it before it becomes due.
    
      Action on capital stock note made by defendants. Motion by defendants for new trial on minutes after direction of a verdict in favor of plaintiff.
    Wallack & Cook, for plaintiff.
    James, Schell & Elkus, for defendants.
   McAdam, J.

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. Rep. 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 App. Div. 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.  