Page:The Green Bag (1889–1914), Volume 11.pdf/611

 572

sary and wholly disingenuous investigations it might have learned that the people of this (and made in numerous suits) into the State, acting in their sovereign capacity, had enacted that " the term corporations as used affairs of the company and its accounts run ning through many years." This case was in this article shall be construed to include decided in June, 1888, and in 1890 the all associations and joint-stock companies legislature enacted chapter 400 of the laws having any of the powers or privileges of of that year, in which it was provided that corporations not possessed by individuals or "no order, judgment or decree, providing partnerships. And all corporations shall for an accounting or enjoining, restraining or have the right to sue and shall be subject to be sued in all courts in like cases as natural interfering with the prosecution of the busi persons" (Sec. 3, Art. VIII). The people in ness of any life or casualty insurance com pany, association or society of this State, or making their constitution in 1846 did not recognize that " there is reason for making a appointing a temporary or permanent receiv distinction between such insurance com er thereof, shall be made or granted other wise than upon the application of the panies and other corporations," and although attorney-general, on his own motion, or the constitution has passed through two after his approval of a request in writing of conventions, and has been under the con the superintendent of the insurance depart sideration of one commission since that ment, except in an action by a judgment time, it remains to-day in the same form as creditor, or in proceedings supplementary to when adopted in 1846, in so far as this pro execution." In 1892 the substance of this vision is concerned. Before that time the revised statutes (§1 Rev. St. (3d ed.) 732) statute was enacted as section 56 of the In surance Law, and in Swan v. Mutual Reserve provided that " every corporation, as such, Fund Life Association (155 N. Y., 9) the has power ... to sue and be sued, com court holds that this " may be regarded as plain and defend, in any court of law or voicing a policy of the law," and declares equity," and this has been the rule from the that "It cannot be said that the enactment time of the Roman law. (Ency. Brit. vol. of such a law is without good reason, or is 6, 432). It may be suggested that the statute under consideration does not' deny against a wise public policy. There is rea son for making such a distinction between the right of the individual to sue, but that such insurance companies and other corpora^ it merely denies the right of the court to tions; for the former have characteristics, issue its process. It must be conceded how which entitle them to be almost public in ever, that a mere naked right to sue is of no importance, if the remedy is denied, and their nature." It is not the purpose of this discussion to the court, in the Swan case (supra) has held follow the court in its remarkable special on demurrer that the " plaintiff has not legal capacity to maintain this action and it must pleading to show that an insurance corpora be brought, if at all, by the attorney-general tion ought to be above the law, but to con sider the provisions of section 56 of the of the State of New York, pursuant to the requirements o'f chapter 690 of the laws of Insurance Law in its relation to the constitu tion, and to call attention to " a policy of the 1892; which apply to this action and pro ' law" which has been laid down by a higher hibit the plaintiff from maintaining it." authority even than that of the Court of Section 449 of the Code of Civil Proce Appeals of the State of New York. If the dure provides that "every action must be learned court had been as astute in discov prosecuted in the name of the real party in ering the real policy of the law as it was in interest, except that an executor or admin finding reasons for supporting this statute, istrator, a trustee of an express trust, or a