
    Franklin T. Hammond, as Receiver of the Atlas Mutual Insurance Company, Plaintiff, v. The International Railway Company et al, Defendants.
    (Supreme Court, Erie Trial Term,
    May, 1909.)
    Conflict of laws — Contracts — General principles — What deemed to be place of work or place of performance — Contracts of insurance.
    A policy of insurance, signed and sealed in Massachusetts by an insurance corporation organized and doing business in that State, and mailed to the insured residing in this State in pursuance of an order sent by mail by the insured to the company at its office in Massachusetts, is a Massachusetts contract and not void under the provisions of section 137 of the Insurance Law.
    Action on a policy of fire insurance. Trial by court without a jury.
    L. M. Cummings, for plaintiff.
    Dana L. Spring, for defendants.
   Pound, J.

This is an action to recover assessments on a policy of fire insurance on property located in Hew York State, issued by the Atlas Mutual Insurance Company, a mutual insurance company created and existing under the laws of Massachusetts, and not authorized, pursuant to the provisions of the Insurance Law (§§ 9 and 25), to transact the business of insurance in this State. The defense is tiiat the contract sued upon was made in the State of New York and is, therefore, void.

“All fire insurance policies issued to residents of this state on property located herein by companies that have not complied with the requirements of the general insurance law of this state, shall be void ” (except such as have been obtained by duly licensed agents to procure such insurance). Insurance Law, § 137.

The Atlas company had no officers or agents within New York, and the insurance was not produced by a duly licensed agent. Defendant opened negotiations for insurance by a letter from Buffalo, dated February 2, 1904, asking the company to wire the total amount of insurance it would be able to place. The company wired, under date of February 4, 1904: “ Can accept $150,000; From what date is insurance wanted ? ” Under same date defendant replied: “ You may issue for us policy for $150,000, dating same Feb. 14th, for term of one year. Send along policy at once with bill for same.” On February sixth, the policy was mailed in Boston. It is dated in Massachusetts, was executed and is payable there. The premium was paid there.

It is unnecessary to consider the question raised by the defendants as to where the contract to insure was made. They maintain that the mailing of the letter of February fourth, in reply to the telegram of the insurance company, amounted to an acceptance of the company’s offer, and brought into existence a New York contract. But it would seem that defendant’s letter amounted merely to an application for insurance; and, in any event, the contract in suit is the insurance policy and not the preliminary agreement to insure, which, so far as this case is concerned, was an isolated transaction, not amounting to the transaction of business in this State. Penn Collieries Co. v. McKeever, 183 N. Y. 98. A Massachusetts insurance company has a constitutional right to enter into a contract in Massachusetts with citizens of Hew York for the purpose of insuring property in New York, and the provisions of the Insurance Law are void so far as they interfere with this right. Allgeyer v. State of Louisiana, 165 U. S. 578.

The law seems settled that this policy of insurance must be regarded as a Massachusetts contract, which took effect when it was mailed in Boston (Western v. Genesee Mutual Ins. Co., 12 N. Y. 258; Baker v. Spalding Bros., 71 Vt. 169; Western Mass. M. F. Ins. Co. v. Hilton, 42 App. Div. 52), and that this action will lie.

The measure of defendants’ liability is fixed at the amount claimed in the complaint, by the rule laid down in the case of Hammond v. Knox, 125 App. Div. 9; affd., 194 N. Y. 555, without opinion; so that discussion of the amount due is uncalled for.

Plaintiff is entitled to judgment for the amount demanded in the complaint.

Judgment accordingly.  