This is a proceeding for the liquidation of an insolvent insurance company incorporated under the laws of this State. The present appeal is brought by an Ohio policyholder of the insolvent company, which seeks *Page 59 to establish its right to participate in the distribution of (a) the general assets of the insolvent insurance company in the possession of the New York liquidator, and (b) the statutory fund required by section 13 of the Insurance Law (Cons. Laws, ch. 28; L. 1909, ch. 33, as amd.) for the protection of policyholder creditors. Thus far, by the distribution of the special New York fund and of general assets, the New York liquidator has paid dividends of 3.2% and 7.3% respectively out of the two classes of assets. As a condition for doing business in the State of Ohio, the insolvent insurance company had been required to create a special fund for the benefit of the policyholders. (Ohio General Code, § 9510, ¶ 2.) Claimant, together with other Ohio policyholder creditors, has received a dividend of 12.675% on its claim as a result of the distribution of the Ohio fund. Only Ohio policyholders received payments out of the fund. The New York liquidator has allowed the claim of claimant for the difference between its original debt and the amount realized from the Ohio deposit upon the condition that no dividend will be paid to claimant until all allowed policyholder claimants shall have received dividends totaling 12.675% of their respective claims, or an amount equal to the dividend received by claimant in Ohio out of the deposit formerly there held by the Ohio State Superintendent of Insurance. Special Term sustained the report of the referee dismissing the objections of claimant to the condition which the liquidator attached to the allowance of the claims. The Appellate Division reversed the order of Special Term and directed that claimant be allowed to participate in the distribution of the general assets free from the condition imposed by the liquidator. In its opinion the Appellate Division stated further that it did not consider the right of claimant to participate in the special New York fund because the court understood that no claim was being made thereto. There are cross-appeals.
The liquidator appeals in order to have the determination of the Appellate Division reversed, and claimant appeals in *Page 60 order to have the determination of the Appellate Division modified so as to provide that claimant is entitled to share in the special New York fund.
Appeal of the Liquidator. The question to be determined on this phase of the appeal is whether the claimant, an Ohio policyholder creditor, may participate in the distribution of the general assets in New York on the same basis as any other secured creditor, i.e., by proving for the difference between the amount of the original debt and the amount realized on the collateral. The disposition of this question in turn depends upon whether the provisions of the Ohio law requiring the deposit established a trust fund for the benefit of Ohio creditors only.
The Ohio statute provides that "* * * a company of another state, territory, district or country admitted to transact the business of indemnifying employers and others, in addition to any other deposit required by other laws of this state, shall deposit with the superintendent of Insurance for the benefit and security of all its policy holders, fifty thousand dollars in bonds of the United States or of the State of Ohio, or of a county, township, city or other municipality in this State, which shall not be received by the superintendent at a rate above their par value."
In construing the above provision, together with other sections of the Ohio Code (641, 642 and 643), the courts of Ohio have held consistently over a period of years that such a deposit is security for the claims of Ohio policyholders only, and that the Superintendent of Insurance of Ohio is the trustee of an express trust in which these policyholders are beneficiaries as secured creditors, and such appears to be the interpretation given to the statute by the Supreme Court of Ohio. (State ex rel. VanSchaick v. Bowen, 131 Ohio St. 310.) In addition, the Superintendent of Insurance of New York concedes that, unlike the provisions designed to cover the same subject-matter in New York, which have been held to be for the benefit of all American creditors and not only those residing in New *Page 61 York (L. 1909, ch. 33; Insurance Law, § 13; cf. § 27; Matter ofPeople [Norske Lloyd Ins. Co.], 242 N.Y. 148), the Ohio fund is for the benefit of Ohio policyholder creditors only. Moreover this particular Ohio fund in question apparently has been distributed under judicial sanction upon that basis. The Ohio viewpoint, that such a fund is a trust fund for the protection of Ohio policyholders only, and that the beneficiaries are secured creditors, has been the general view of deposits made under similarly worded statutes. (Blake v. McClung, 172 U.S. 239,257; People v. Granite State Provident Assn., 161 N.Y. 492,496, 497; Matter of People [Norske Lloyd Ins. Co.], 249 N.Y. 139,149; Bank Commissioners v. Granite State ProvidentAssn., 70 N.H. 557.) Under the law of Ohio this claimant was, therefore, a secured creditor, notwithstanding that the security was not in its possession but was held in trust for its benefit by the Ohio Superintendent of Insurance. It was a secured creditor as would be a bondholder where a trustee held collateral for his benefit and for the benefit of other bondholders. (Stateex rel. Haavind v. Crabbe, 114 Ohio St. 504; State ex rel.Van Schaick v. Bowen, supra; Western Assurance Co. v.Halliday, 110 Fed. Rep. 259; affd., 126 Fed. Rep. 257.) The same principle has been applied in this State. (People v.Granite State Provident Assn., 161 N.Y. 492.)
We are not now confronted with the problem of what the situation would have been if the State of Ohio had attempted merely to give a preference to Ohio creditors in the assets of the insolvent company situated in Ohio, when there were no facts present as there are in the case at bar, making them secured creditors. (Cf. Blake v. McClung, supra.)
Coming into this State, therefore, as a secured creditor, there appears no reason why claimant should not be included within the statutory provision regarding secured creditors, which reads as follows: "No claim of any secured claimant shall be allowed at a sum greater than the difference between the value of the security and the amount for which the *Page 62 claim is allowed, unless the claimant shall surrender his security to the superintendent in which event the claim shall be allowed in the full amount for which it is valued." (Insurance Law, art. XI, § 425, subd. 5.)
The above section merely restates the well-recognized "Bankruptcy Rule," by which secured creditors are allowed to prove the balance of their claims above the value of their security, as contrasted with the "Chancery Rule," by which secured creditors are allowed to prove their claims in full without regard to their security. (Merrill v. National Bank ofJacksonville, 173 U.S. 131.) There has thus been declared by statute that in a liquidation proceeding of an insolvent insurer in this State, the "Bankruptcy Rule" shall be followed. This court has also held that the equitable rule of equality among creditors of the same class does not operate to deprive a creditor who holds security, of his superior rights. (Matter ofPeople [Southern Surety Co.], 266 N.Y. 589; Matter of People [First Russian Ins. Co.], 253 N.Y. 365.) In common with other secured creditors, therefore, the beneficiaries of such a trust may prove their claims for the difference between the original debt and the amount realized on the collateral. (BankCommissioners v. Granite State Provident Assn., supra, at pp. 560-562; 2 Beale on Conflict of Laws, §§ 264.2, 264.3, 264.4.)
Upon the appeal of the liquidator, therefore, the order of the Appellate Division should be affirmed.
The Appeal of Claimant. The Insurance Law, section 13, provides that insurance companies shall deposit securities with the Superintendent of Insurance, which "shall be held * * * for the protection of the policyholders of such domestic insurance corporation or insurer within the United States." It is clear from the language, and the Superintendent of Insurance apparently concedes, that this fund is not limited to New York policyholders but to policyholders anywhere within the United States. The section has been so construed. (Matter of People [Norske LloydIns. Co.], 249 N.Y. 139.) Claimant, therefore, would seem to be entitled to participate in this fund were it not for the question of waiver. *Page 63
The facts from which a waiver may be inferred are as follows:
1. Among the stipulated facts are the following:
"10. * * * the New York Liquidator has paid a dividend to policyholder claimants of 3.2% out of a certain statutory deposit of the Southern Surety Company of New York held by the New York State Superintendent of Insurance, and a dividend of 7.3% out of the general assets to all non-policyholder claimants and policyholder claimants throughout the country, who have not received a dividend equal in amount to that paid by the New York Liquidator" (f. 107). * * *
"12. Claimant herein objected to the liquidator's recommendation and requested that the liquidator pay to it a dividend of 7% which was paid by the liquidator out of the general assets as aforesaid, after first deducting from the amount of its claim herein a sum equal to 12.675% thereof. A copy of said objections is hereto annexed, made a part hereof and marked Claimant's Exhibit `B'" (f. 109).
The reference to 7% in paragraph 12 must mean that the claimant asserts its right to participate in the distribution of the general assets, for otherwise the figures would be meaningless, since the only relevant numbers in this case are 3.2%, 7.3% and 12.675%.
2. At the conclusion of claimant's objections to the recommendation of the liquidator relief was requested in the following terms: "Wherefore, said claimants ask that payment be made forthwith of a dividend in the amount of 7% of each respective claim after deducting from the amount of each claim as heretofore approved, a sum equal to 12.675% of such claim representing the dividend heretofore received in the proceedings in the State of Ohio as referred to above." Here, too, the reference to 7% must be taken to assert an interest in the general assets and not to the statutory fund.
3. Upon the argument before the referee counsel for claimant stated the following: "Our position is that this Ohio statute in fact constitutes the Ohio claimants who *Page 64 qualify definitely as secured creditors, and we feel that it is therefore of interest to determine what the rule of law is with respect to the right of a secured creditor to participate in the distribution of the general assets of an insolvent." Thus, here again, no claim to the New York statutory fund is asserted.
4. Finally, it is asserted in the brief of the Superintendent of Insurance that upon the oral argument in the Appellate Division, counsel for claimant was asked whether it asserted a right to participate in the New York statutory fund, and the answer was "No." This would account for the reference in the opinion of the Appellate Division, which reads as follows: "In the liquidation proceedings in this State the Liquidator has paid a dividend to policy holder claimants of 3.2% out of a statutory deposit of the Southern Surety Company held by the Superintendent of Insurance of New York State (in which apparently the GoodyearCompany claims no interest), and he has paid a further dividend of 7.3% out of the general assets * * *." (256 App. Div. 237,239.)
Thus it would appear that at every stage of the proceeding prior to the argument in this court, there was no dispute between the liquidator and the claimant as to the latter's right in regard to the New York statutory fund. To reverse the orders below upon the appeal of claimant would allow an objection in these proceedings raised for the first time, not only upon recourse to the courts but upon the appeal in this court.
The order appealed from should be affirmed, without costs.