Sands v. Sweet , 44 Barb. 108 ( 1865 )

By the Court, Bockes, J.

These actions are brought on premium notes. As a defense, it is averred that the notes were assessed by a former receiver, to whom the plaintiff is successor. To this defense a demurrer was interposed, and judgment was ordered in favor of the plaintiff on the demurrer. An appeal was thereupon taken to the general term.

The question here presented was considered in Campbell v. Adams, (38 Barb. 132,) and the defense that there had been a former assessment on the note was deemed good. The decision was put on the ground that the assessment was a judicial act, and was final. The court, per Welles, J. say: “ The receiver has no right thus to consolidate the alleged claims against a member of the company who may have legal objections against one assessment, which do not apply to another, and ought not to have his defense complicated and embarrassed by rolling up all the assessments into one.” This is a general term decision, and in the absence of any other or different determination by the court, would probably control us on this appeal. But the same question arose at general term in the sixth district, where the court declined to follow the decision in Campbell v. Adams, and held directly the reverse. We are therefore required tó examine the question as an original one in view of these hostile decisions.

If the decision in Campbell v. Adams rests on the ground there suggested, that the assessment is a judicial act, it can not stand ; for it is now well settled that the assessment is but the performance of a ministerial duty. (31 Barb. 172, 177, 178. 14 id. 373. 18 N. 7. R. 592.) These decisions are to the effect that the receiver acts ministerially and not judicially in making the assessment. Hence it would seem that the principal ground of the decision in Campbell v. Adams is unsound. The court also remark, in substance, that the receiver should not be allowed to remove, by a second assessment, difficulties or errors existing in a former one. ■ It occurs to me that difficulties in the way of enforcing the first assessment would be 9 very substantial reason for a second regular and valid one. So it was held in Massachusetts, (10 Gray, 297,) that an assessment was not invalid because laid in the place of a previous illegal assessment. The grounds of the decision, in Campbell v. Adams, do not, in my judgment, bear the test of examination. If we assume that the former assessment was in all respects regular- and valid, then the question is whether one mere ministerial act will bar a future one in regard to the same subject matter, and with a .view to accomplishing the same end. Whether, in this case, a mere assessment which remains unenforced should render a second one, embracing the same object and designed to accomplish the same purpose, invalid and of no force. If the purpose and effect of the second were to deprive a party of any substantial right, the case would be different. But it is not made to appear from the answer that the defendant can be injured by the second assessment. So far as is made to appear, it is but a repetition of an act in no respects injurious to him. It is no more than repeating performance of a condition precedent to a right of action. If a debt be due only after demanded, I think the party might rely on a second demand without danger of having the former one set up in bar of his action. I am inclined to follow the decision in Jackson, rec'r, v. Van Slyke, (decided in the sixth district,) (^a) rather than the decision of Campbell v. Adams. I fully concur in the views éxpressed by the court in the former case, and regard the conclusion there arrived at as sound.

[Clinton Geneeal Teem, July 12, 1865.

Order of special term affirmed, with ten dollars costs.

Boches, James and Bosehrans, Justices.]

a (a) Decided at a general term held by Justices Campbell, Parker, Balcom and Mason, in Broome county, in January, 1865. The case was as follows:

“These actions were each upon a premium note or notes, given to the Union Insurance Company. The fourth defense was that Justus White, a former-receiver of this company, assessed the notes to the entire amount, by which said notes became due,-in thirty days after the filing the certificate of the assessment in the clerk’s office. There was a demurrer to that defense, for insufficiency. At a special term, held by Balcom, J. the demurrer was sustained, from which decision this appeal to the general term was taken by the defendants, respectively.

J. A. Dewey, for the appellants.

Henry B. Mygatt, for the respondent.

By the Court, Mason: J. This .case comes, before us on appeal, from an order sustaining a demurrer to the fourth defense set up in the defendant’s answer, which defense in substance is that a prior receiver of this company, Justus White, had made a prior assessment in 1856, upon this same note, against the defendant, and that consequently the assessment relied upon in the complaint and made by the plaintiff in 1863, is invalid, and the plaintiff can not recover thereon. The counsel for the appellant relies upon the case of Campbell v. Adams, (38 Barb. 132,) as an authority, holding this second assessment which included the former assessment as invalid. I can not agree with the doctrine laid down in that case. The court say, in that case, the first assessment, if regular, is final against the defendant. That it is the nature of a judgment. (See p. 135.) This can not be so, for it is well settled that the receiver in making the assessment acts not in a judicial, but in a ministerial capacity, (Bangs, receiver, v. Duckinfield, 18 N. Y. Rep. 529 ,) and his assessment is by no means conclusive.

I am not able to see any well founded objections against allowing the second assessment to include the former. If the first assessment had for any cause failed to be effectual, then it is well held that the second assessment may embrace it. (People’s Mutual Insurance Company v. Allen, 10 Gray's R. 301.) And if the first assessment was a legal and valid one, what harm can arise to the premium note maker in putting the amount of the first assessment into the second! certainly none; and if the first assessment was irregular or defective, for any cause, it certainly is but reasonable and just that the receiver should be allowed to make one that is, and when the court has authorized the receiver to make a second assessment, including the first, I can entertain no doubt it is valid and should be enforced. I concede that if there has been a regular assessment and notice given to the party, or a demand, so that the assessment can be regarded as due, and the receiver allows six years thereafter to elapse so that the statute of limitations shall have attached, then the receiver can not by making a new assessment revive the demand so as to prevent the operation of the statute of limitations. This point is argued by the appellant’s counsel in his brief, and I assent to it wholly. The difficulty with the argument is, the point is not in the case. This fourth defense does not set up or insist on the statute of limitations at all. If the defendant had concluded this fourth defense with the allegation that more than six years had elapsed since the first assessment became due, insisting on the statute as a bar, then he should have judgment on this demurrer, but he has not done so, and the judge at special term was conse-