Howard agt. The Franklin Marine and Fire Insurance Co., 9 How. Pr. 45

Wright, Justice. The 16th

section of the “ Act to provide for the Incorporation of Insurance Companies,” passed in 1849, provides that “ suits at law may be prosecuted and maintained by any member or stockholder against such corporation for losses which may have accrued, if payment is withheld more than two months, in all risks after such losses shall have become due.” The act authorizes the organization of insurance companies either on the joint stock, or mutual plan. The

section of the act above quoted is not disabling but remedial in its nature; intending to give a remedy at law either to the stockholder or member of a corporation which at common law it was doubtful whether he possessed. The plaintiff’s assignor in this case was neither a member nor stockholder of the defendants’ company, and the

section cited has no application to Mm. The policy, or contract sued upon, shows that the insured party paid‘a cash premium; that he gave no premium note; and that the insurance was not in any wise upon the mutual plan, whereby Ellis would have become a member of the corporation. The contract between the parties abundantly evinces that he had no interest in the company whatever, which, at common law, would disable him from suing the corporation. He was a mere dealer, or contractor with the company, and in no sense a member or stockholder. But if it were granted that

section 16 applied to this case, still that

section and the limit contained in it were expressly waived by the defendants when they made the' contract of insurance with Ellis. One of the conditions annexed to the policy is as follows : “ Payment of losses shall be made in 60 days after the loss shall have been ascertained and proved, without any deduction whatever.” By the express terms of the contract, the defendants agreed to make payment in 60 days after proof of the loss; and It does not now lie with thé defendants to say that payment was to be made at another time; or that they can withhold payment for the additional two months, mentioned in

section 16. The condition above cited, annexed to the policy on which the action is brought, is expressive of the intent of the parties as to the time when the legal liability of the company to pay arose. The matter of the answer proposed to be stricken out, palpably constitutes no defence. It is a sham pleading; but, if not, the matter is irrelevant, and should be stricken out. (Code, § 152,160.) Let an order be entered granting the motion, with $10 costa.