BURNS a. THE PROVINCIAL INSURANCE COMPANY

BURNS a. THE PROVINCIAL INSURANCE COMPANY. Supreme Court, First District ; General Term, September, 1861. Jurisdiction in Actions against Foreign Corporations. Chapter 107 of the Laws of 1849,—which provides that suit may he brought against foreign insurance corporations, upon any-contract made or delivered within this. State,—authorizes an attachment-to be issued under the Code as a provisional remedy in an action on a policy of insurance issued in this State, although the case be not within the strict reading of section 427 of the Code. Appeal from order vacating attachment-. This was an action upon a policy of marine insurance issued by the defendants, an insurance company incorporated and doing business in Canada, in favor of the plaintiff, upon the bark General Wiltshire, on a voyage to Great Britain, for $2,500. The bark was lost at sea. At the commencement of the action plaintiff obtained an attachment under the Code. The defendants applied at chambers to vacate the attachment ■upon affidavits showing that plaintiff resided in Liverpool, England. The plaintiff read the affidavit of his agent, who effected the insurance and procured the policy underwritten .by the defendants, to the effect that all the negotiations for said insurance took place in the city of New York, between deponent and A. W. Thompson, the agent of the company, resident in the city of New York. That the contract was made and..concluded, and the policy issued to deponent, for and on behalf of. the plaintiff, at the city of New York and not elsewhere^" and the policy expressed on its face no place of payment or performance other or different than that where it was made, to the best of deponent’s knowledge and belief. .Mr. Justice Sutherland, at chambers, set aside the attachment. The plaintiff appealed. Jer. Larocque, for the appellant. —I. The contract having been made within this State, the cause of action did arise therein, within the intent and meaning of sections 134, 135, and 427 of the Code. (Whitehead a. Buffalo & Lake Huron R. R. Co., 18 How. Pr., 218, 232 ; Campbell a. Champlain & St. Lawrence R. R. Co., Ib., 412, 416.) II. Such being the intention of the Legislature; any reference in the new provision to the place of making the contract was unnecessary, as the" case was included under the general reference to the place where the cause of action arises. III. The act to extend the remedies at law against foreign insurance companies (Laws of 1849, 142, ch. 107) is not repealed by the Code. The act is a mere amendment of section 15, art. 1, title 4, ch. 8, part 3 of the Revised Statutes, and'the repeal of any part of said ch. 8, excepting the 2d and 12th title, is expressly saved by section 471 of the Code. Clearly, therefore, the court has jurisdiction of this action: IV. Any other construction frustrates, to a great extent, the beneficial intentions of the Legislature in requiring agents of foreign insurance companies, doing business in this State, to keep a sum of money invested to answer to actions against them in our courts. E. C. Benedict, for the respondents. [MAJORITY — By the Court.— Ingraham, J.] By the Court.— Ingraham, J. —Although this case may not be within the strict reading of section 427 of the Code, the atit of 1849, ch. 107, will sustain the attachment. By that act, which professes to -extend the remedies against foreign insurance corporations, it is provided- that suits may be brought against such companies upon any contract, made or delivered -within this State. The contract here sued on is the policy of insurance. The affidavit of-De Wolf, the plaintiff’s agent, is positive that the contract was made and the policy issued to the witness at the city of Hew York and not elsewhere. The evidence to the contrary on the part of the defendants is only on information, and does not contradict the allegation that the contract was delivered or issued in Hew York. I think the order should be reversed. ■ Present, Clerke, P. J., Ingraham and Leonard, JJ.