
    William B. Stevens, Receiver of the Commonwealth Mutual Fire Insurance Company, Respondent, v. Hyman Hein and David Fox, Appellants, Impleaded with Isaac Pachner.
    
      Mutual fire insurance policy — agreement that the insured will pay assessments levied under the laies of Massachusetts—right of a receiver of the company to recover an assessment so levied upon a resident in New York — lex loci contractus — notice.
    
    Where a policy of fire insurance, issued by a mutual fire insurance company, contains an express agreement by the insured to pay, in addition to the cash premiums, all such sums as may be assessed by the board of directors of the company, pursuant to the laws of Massachusetts, not to exceed three times the ■amount of the premium, and an assessment is levied by the hoard of directors ■of the company, and a judicial determination is had thereon, according to the laws of the State of Massachusetts, a receiver, of the company is entitled to recover the amount of such assessment from policyholders who are residents ■of the State of New York, irrespective of whether the policy was a New York contract or one made in Massachusetts, or whether the policyholders had notice of such proceedings, unless it appears that they were”entitled to notice under the laws of Massachusetts.
    Appeal- by the defendants, Hyman Hein and David Fox, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of September, 1898, upon the decision of the ■court rendered after a trial at the New York Special Term overruling the said defendants’ demurrer to the plaintiff’s complaint, ■and also from the order upon which such judgment was entered.
    
      
      B. G. Oppenheim, for the appellants.
    
      Henry B. Twombly, for tlie respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiff, as receiver of the Commonwealth Mutual Fire Insurance Company (also appointed ancillary receiver in New York State), against the defendants to recover certain' assessments levied upon them under a mutual policy issued to them by said company. Losses having occurred rendering necessary an assessment upon the policies of the company, pursuant to the laws of Massachusetts an assessment was levied by the board of directors of the company and a judicial determination, according to the laws of Massachusetts, was had thereon. The assessment levied against the defendants having been demanded and refused, this action was commenced to recover the same.

In support of the demurrer it is claimed that as a cause of action against the defendants, as shown by the complaint, depended entirely upon the effect of certain legal proceedings taken in the courts of Massachusetts, to which neither of the defendants were parties, and that as the complaint shows no facts constituting a liability against them outside of such legal proceedings, it was demurrable. To support this contention the defendants claim, first, that the contract was a New York contract and not a Massachusetts contract where-under the defendants would be bound by proceedings under the Massachusetts statute; and secondly, that the policy being a New York contract, the proceedings in Massachusetts were not binding upon the defendants who were not parties thereto; and that the contract being a New York contract, the defendants had a right to be heard in the matter of its enforcement, and that the proper place was in the New York forum; and that they being residents of New York could not be concluded by a proceeding brought entirely under the Massachusetts statute. They further claimed that there was not sufficient allegation of notice of the assessment to entitle the plaintiff to claim its recovery.

It seems to us, so far as the liability of the defendants is concerned, entirely immaterial whether the policy in question was a New York contract or one made in the State of Massachusetts, for the reason that there is an express agreement in the policy issued to pay, in addition to the cash premiums, all such sums as might be assessed by the board of directors of the company pursuant to the laws of Massachusetts, not to exceed three times the amount of the premium. Therefore, so long as the proceedings by which the assessment was arrived at conformed to the laws of Massachusetts, there was a contractual obligation upon the part of the defendants to pay, the place of their residence or domicile, or the lena loci contractus being, therefore, entirely immaterial. Even if the contract was made in New York, it was a contract to be bound by proceedings according to the laws of the Commonwealth of Massachusetts, and in the courts of that State, and it appears in the complaint that under such laws the proceedings for assessment took place in that State. Unless the parties were entitled to notice under the laws of Massachusetts, which does not appear, the fact that no notice of such proceedings is alleged in no way affects their validity.

The objection that no sufficient notice of the assessment has been alleged' seems to be equally without foundation. There is an allegation in the complaint that written notice of such assessment was made by mail upon the defendants within two years from the expiration of the policy, and that demand was made for the payment of same, and that payment was refused and no part thereof had been paid. Notice by mail or otherwise was sufficient, and they certainly had notice of the assessment when the demand was made upon them for its payment.

We think, therefore, that the demurrer was properly overruled, and that the judgment should be affirmed, with costs, and with leave to the defendants to withdraw demurrer and answer on payment of costs in this court and in the court below.

Barrett, Bümsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs, and with leave to defendants to withdraw demurrer and answer on payment of costs in this court and in the court below.  