In the Matter of the Application of The People of the State of New York, by James A. Beha, Superintendent of Insurance of the State of New York, Appellant, for an Order to Take Possession of the Property and Conserve the Assets for the Benefit of the Creditors of the Northern Insurance Company of Moscow; In the Matter of Severnoe Securities Corporation, Respondent, v. Phœnix Assurance Company, Limited, Appellant

In the Matter of the Application of The People of the State of New York, by James A. Beha, Superintendent of Insurance of the State of New York, Appellant, for an Order to Take Possession of the Property and Conserve the Assets for the Benefit of the Creditors of the Northern Insurance Company of Moscow. In the Matter of Severnoe Securities Corporation, Respondent, v. Phœnix Assurance Company, Limited, Appellant. Insurance — Superintendent of Insurance — motion to determine whether Superintendent of Insurance has any interest or claim in action alleged in complaint — if Superintendent, as liquidator, claims any interest he may safeguard interest by becoming party to action — if Superintendent has funds to pay American creditors he may apply for instructions and be protected from taking part in litigation. Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on December 21, 1927, as resettled by an order entered on March 22, 1928, and also from an order entered on March 22, 1928, in so far as it denies resettlement of the aforesaid order. [MAJORITY — Per Curiam.] Per Curiam. The court, on this motion, cannot pass upon the question of the validity of the assignment to the Severnoe Securities Corporation or decide a conflict of title between that corporation, the Northern Insurance Company of Moscow and the Superintendent of Insurance as liquidator. If the Superintendent of Insurance, as liquidator, claims an interest in this litigation, he may safeguard his interest by accepting the suggestion of plaintiff’s attorneys tha he be made a party to the record. The primary duty of the Superintendent of Insurance is merely to secure payment for American creditors. If he has ample funds to accomplish this purpose, he may, upon appropriate application for instructions, be protected from the obligation to take part in this litigation. That instruction could be given without reference to the voluminous and complicated controversy existing between this defendant and the other part'es. If the Superintendent of Insurance desires such instructions, it is his duty in the first instance to make application therefor, with a succinct statement of the present financial situation and of his opinion as to the necessity for further reducing contested choses in action to judgment. The orders should be affirmed, with ten dollars costs and disbursements. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Orders affirmed, with ten dollars costs and disbursements.