
    Levy et al. v. Mutual Life Ins. Co.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Insurance—Riuhts oe Insured—Injunction.
    A policy-holder sued to enjoin the company from buying certain land and from erecting a building, and to compel it to sell land already acquired, on the ground that it was exceeding its charter rights and was rendering itself liable to a forfeiture. The complaint failed to allege an intention to buy the land, and showed that the building was already in progress of erection. It did not show that a sale of the land acquired could properly be made, or that such sale could be made without injury to defendant, nor did it show that plaintiff would suffer in any way by the action of the company, or that its assets would not meet all liabilities if the charter were forfeited. Meld, that the complaint should be dismissed.
    3. Same—Action—Parties.
    An action for such purpose, if maintainable at all, should be brought against the officers or trustees of the company, and not against the company itself.
    Appeal from special term, New York county.
    Action by Samuel Levy and another against the Mutual Life Insurance Company, for an injunction. A demurrer to the complaint was sustained, and plaintiffs appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      James A. Dennison, for appellants. Robert Sewell, for respondent.
   Daniels, J.

It appears by the complaint that two policies of life insurance were issued by the defendant upon the life of Samuel Levy, for the benefit of his wife. They amounted, together, to the sum of $30,000; and, as a ground of action, it was alleged that the defendant, which was incorporated under an act of the legislature of this state passed April 12, 1842, had purchased land and was engaged in the erection of a building upon it, as an addition to a building previously erected and owned by it, and that this was in excess of, or beyond, the authority conferred upon the company by its charter, and exposed it to an action by the attorney general for its dissolution. No special injury to either "of the plaintiffs, or any other person taking insurance from the defendant as a mutual insurance company, was alleged or shown by the complaint. It was not stated that the ability of the defendant to meet these, as well as all its other engagements, was or would be in any respect diminished or affected by the acquisition of the land or the erection of the building. But the sole peril to the plaintiffs was the possibility, or remote probability, that the attorney general, for this exercise of authority, might institute and maintain an action to dissolve the company and forfeit its corporate rights. But, even if that should be done, no allegation was made of any apprehended inability to pay the amount of its policies out of the assets of the company; and it did not appear, consequently, that either of the plaintiffs had been, or would be, in any respect subjected to an injury requiring redress through an action on their part. And under this state of facts the case of Uhlman v. Insurance Co., 109 N. Y. 421, 17 N. E. Rep. 363, seems to be in principle a direct authority against the action. The relief for which the plaintiffs applied by their complaint was that the defendant and its officers should be enjoined and restrained from further purchasing real estate to enlarge or add to the building in which its principal otfice was situated. But no statement was made in the complaint that any intention existed to purchase or acquire such additional real estate; and, in the absence of that allegation, there was no reason for invoking the interposition of the court to prevent such a purchase. A further object of the complaint was to enjoin and restrain the defendant from erecting or making the additions proposed to its building, and in process of erection. But no case was presented by the facts for this relief; for it appeared by the complaint that the company was already-engaged in erecting and putting up the building, and no benefit whatever, either to the plaintiffs or to the company, would result from restraining its progress. On the contrary, it may well be inferred from what has been set forth in the complaint that such a restraint or interference would be not only an injury to the company, but might be to the plaintiffs themselves. A still further object of the action was a requirement that the directors of the company, who were not parties to it, should sell and dispose of the real estate which in this manner had been acquired. But a direction to make that sale and disposition has not been maintained by anything contained in the complaint. It does not appear that it could properly be made in the condition in which the work upon the land had been placed at the time of the commencement of the action, or that such a sale could be made without detriment or injury to the defendant, or that any loss or prejudice whatever would result to the plaintiffs if it should not be made. Whatever was done in the acquisition of this land and the commencement of the building is reasonably to be inferred to have been done by the officers or trustees of the company. If any misconduct has taken place, it has been the misconduct of these persons, and the action should have been against them, if it could be maintained at all, for the vindication of any rights which had accrued to the plaintiff, and the protection of the corporation itself. They, and they alone, are the wrong-doers, if a wrong has been perpetrated and the powers of the company have been exceeded; and, as wrong-doers, the action should have been for their restraint, and not that of the company, which apparently has no more then submitted to what these officers have and are endeavoring to accomplish. The judgment in the action was right, and it should be affirmed, with costs. All concur.  