The claims involved in this appeal all arose under bonds given by the Empire State Surety Company pursuant to the provisions of the United States statute approved February 24, 1905, amending an act approved August 13, 1894, entitled “An Act for the protection of persons furnishing materials and labor for the construction of public works.” (33 U. S. Stat. at Large, 811, 812, chap. 778; amdg. 28 id. 278, chap. 280.) The act.as thus amended requires a bond to be given by every contractor with the United States for any public work, which shall provide, among other things, for the prompt payment by the contractor to all persons furnishing labor or materials to be used on such work, which persons are given the right to intervene and be made a party to any action brought by the United States upon *343such bond, and to have their rights and claims adjudicated therein. If no suit shall be brought by the United States within six months from “the completion and final settlement of said contract,” then any claimant for labor or materials furnished may bring an action in the name of the United States in the appropriate Federal court, but such action must be commenced within one year after complete performance and settlement of the contract, and only one such action shall be brought, provision being made for giving notice to all claimants under said contract, and for their intervention as parties.
The Empire State Surety Company had executed bonds, under the provisions of this statute, for a number of contractors with the United States. On December 16, 1912, an order of the Supreme Court was made, pursuant to section 63 of the Insurance Law, declaring the Empire State Surety Company to be insolvent, directing the Superintendent of Insurance to take possession of its property and liquidate its business, and restraining the bringing or further prosecution of actions at law or suits in equity against said company. On September 23, 1913, an order was entered dissolving the Empire State-Surety Company.
Subdivision 3 of section 63 of the Insurance Law (Consol. Laws, chap. 28 [Laws of 1909, chap. 33], added by Laws of 1909, chap. 300, as amd. by Laws of 1912, chap. 217) reads as follows: “ The rights and liabilities of any such corporation, and of its creditors, policyholders, stockholders and members, and of all other persons interested in its assets, shall, unless otherwise directed by the court, be fixed as of the date of the entry of the order directing the liquidation of such corporation in the office of the clerk of the county wherein such corporation had its principal office for the transaction of business upon the date of the institution of proceedings under this section.”
It seems to be settled by authority that claims against the company must be valued as of the date of the entry of the order directing the liquidation of the company (no other date having in this instance been fixed by the court), and that claims which on that date were “ contingent ” are not entitled to *344share in its assets. (People v. Metropolitan Surety Co., 205 N. Y. 135.)
The question we have to answer, therefore, is whether any of the claims involved in this appeal, and, if any, which, were “ contingent ” on December 16, 1912.
A large number of claims arising upon bonds given under the Federal statute hereinbefore referred to were presented to the Superintendent of Insurance as liquidator, and were rejected by him upon the specific ground that none of them had been put in judgment on December 16, 1912, and were all, therefore, in his opinion, contingent and not allowable against the assets of the company in his hands, and he so reported to the Supreme Court, and moved that said claims be rejected.
By the order appealed from this motion was denied “ as to all claims upon which judgment has been or may be obtained, and in which the labor or material had been furnished prior to December 16, 1912.” By the same order said order of December 16, 1912, and the order of dissolution of September 23, 1913, were modified nunc pro tunc by providing that such claimants might bring, continue and proceed to judgment in actions upon said claims. The effect of the order, therefore, is, as to all of such claims which had accrued but had not been put in judgment on December 16, 1912, whether actions upon them had then been begun or not, that the time for perfecting them by judgment is indefinitely extended, and that the date upon which they will respectively mature may differ widely, depending upon the course of the several litigations.
That this must be the effect of the order appealed from is shown by a consideration of the several classes of claims presented for our consideration upon this appeal. In one class th'e contract had not been completed on December 16,1912. As to this class it seems to be evident that any claim for labor or ■ materials must be deemed to have been contingent and not absolute at the date mentioned. As to all the other classes the contracts had been completed and settled prior to December 16,1912, but none of the claims presented had then been put in judgment, although as to some of them actions had been commenced and, were then pending. As to .those latter a part had been putin judgment after December 16, 1912; *345but before the rejection of the claims by the Superintendent of Insurance.
It is the evident intent of that subdivision of section 63 of the Insurance Law above quoted that the liabilities provable against a surety company in a case like the present are those which upon the date of the order for liquidation (unless another date be fixed by the court) are fixed, determined and ascertainable, and so it has been construed by the Court of Appeals upon a review of a large number of cases. (People v. Metropolitan Surety Co., supra.)
That case arose under a bond given to release an attachment, and which stipulated for the payment of any judgment which might be recovered by the attaching creditor. Such judgment was obtained after the dissolution of the surety company, and the holding of the court was to the effect that the claim against the surety company at the time of its dissolution was contingent, and, therefore, not provable against its assets. While upon the facts that case bore little analogy to the present, the reasoning of the court was not confined to the particular facts before it, and was supported by the citation of a number of cases closely analogous to the present.
This brings us to the fundamental question arising upon this appeal, which is whether or not claims arising under bonds given pursuant to the Federal statute above referred to, which have not been put in judgment before the date of the order for the liquidation of the surety company, are absolute in such a sense as to be provable against the assets of the surety, or are contingent and non-provable.
This question as we consider has already been answered by the Court of Appeals in People v. Metropolitan Surety Co. (211 N. Y. 107).
The claims considered in that case differed from those now under consideration in that the contract under which it arose had not been completed until a date subsequent to the order dissolving the surety company. The prevailing opinion, however, did not dwell upon this circumstance, nor base its reasoning thereon, but held that the provisions of the Federal statute under which the bond was given must be read into the bond itself as if literally incorporated therein, and consequently *346that “ The liability of the surety company to the claimant did not become absolute and- direct when, after it had supplied the materials to the original contractor, their price became due, or when the contract between the original contractor and the United States was completed and finally settled. It remained qualified and conditional. Its certainty or absoluteness depended upon the possibility that, by means of the only method provided or permitted by the statute and not then instituted, the validity and enforceability of the claim be adjudicated. A judgment for it in an action prescribed by and conducted in accordance with the requirements of the statute could alone render it complete and absolute. The means of enforcement define both the right of the claimant and the liability of the surety which it was the intention of Congress to create. * * * Whatever right of action was in the claimant or liability on the part of the surety was conditioned upon the use of the statutory remedy. Divorced from that remedy the right and the liability are nonexistent. The claimant should have conformed with the provisions of the statute and obtained in the statutory action and presented to the receiver a judgment establishing the validity and amount of his claim. His claim as presented was conditional and not absolute, and its allowance was error. ”
In the light of this deliberate expression by the Court of Appeals, and in view of the established rule that to be provable a claim must be existent and absolute at the date of the entry of the order directing the liquidation of the surety corporation, we are constrained to hold that none of the claims submitted for consideration upon this appeal were properly provable and allowable against the assets of the surety, because no one of them had been reduced to judgment on December 16, 1912. The arguments in favor of a different ruling, at least respecting claims upon contracts which had been completed and settled before December 16, 1912, are presented with much force and plausibility, but they were all presented with equal force in the dissenting opinion in the case from which we have quoted, and, since they failed to meet the approval of a majority of the judges, must be deemed to have been deliberately overruled by the Court of Appeals.
*347It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion of the Superintendent of Insurance granted.
McLaughlin, Laughlin and Clarke, JJ., concurred; Ingraham, P. J., dissented in part.