This order, made at Special Term, Supreme Court, New York county, modified a general stay contained in the liquidation order in these proceedings entered on May 22, 1925, so as to permit certain creditors to proceed with actions pending in the Supreme Court against the Second Russian Insurance Company.
It provided:
(1) That the motion to modify the injunction order of May 22, 1925, is granted to the extent hereinafter indicated and the motion for the appointment of a receiver is denied on the ground that receivers have heretofore been appointed (by Mr. Justice Valente December 5, 1927);
*107(2) That the Behre and Hamburg actions against the Second Russian Insurance Company retain their place upon the calendar and proceed to trial to and including the entry of judgment and that the receivers of the Second Russian Insurance Company, Hon. Robert F. Wagner and James F. Cavagnaro, and James A. Beha, as Superintendent of Insurance of the State of New York, be joined as defendants in the same.
(3) That the receivers and the Superintendent of Insurance and their successors be enjoined from transmitting or causing to be transmitted to any place outside the State of New York any money, property or funds, except so much as exceeds the sum of $300,000 of such assets in this State.
(4) That in the event of a recovery of judgment by either of said plaintiffs application may be made to issue execution upon the same or for other relief; and
(5) That Albert Massey was authorized to and does represent the Second Russian Insurance Company in the actions entitled "Ernst Behre et al. v. Second Russian Insurance Company," and “ Hamburg Insurance Company v. Second Russian Insurance Company and that Messrs. Bonynge & Barker are authorized to and represent the Second Russian Insurance Company, in the above-entitled proceeding and on this motion.
The Superintendent of Insurance has appealed from the above provisions of the order numbered 1, 2, 3 and 4, except so much of No. 1 as denies the appointment of a receiver, and Albert Massey has appealed from so much of provision No. 5 as determines that Messrs. Bonynge & Barker are authorized to and represent the Second Russian Insurance Company in the above-entitled proceeding and on this motion.
We think that our recent order reversing the appointment of receivers and providing for the presentation at Special Term of a general plan for the distribution of the surplus assets of the Second Russian Insurance Company now in the hands of the Superintendent of Insurance, involves the determination of the claims of foreign creditors in litigation in our courts, and any determination of such claims under any plan should not be embarrassed by continuance of litigations which may preclude their inclusion therein. The direction of the present order that the two stated actions retain their place upon the calendar and proceed to trial will clearly be inconsistent with any such plan if it is designed to be inclusive of all claims to the fund. Such provision should, therefore, be reversed.
We conclude, too, that the making of the Superintendent a party to said actions is improper since such officer is, when liquidating a foreign insurance company, an ancillary receiver only and not *108authorized to pass upon foreign claims. He cannot, therefore, be considered a necessary or proper party to a law action: (Matter of People [City Eq. Fire Ins. Co.], 238 N. Y. 147, 156; Matter of People [Second Russian Insurance Co.], 244 id. 606, 607.)
Our prior decision (Matter of Second Russian Ins. Co. [Hamburg Ins. Co.], 219 App. Div. 46) and the dismissal by the Court of Appeals of the appeal taken as a matter of right (244 N. Y. 606) and the subsequent denial by this court of the motion to reargue or for leave to appeal to the Court of Appeals (219 App. Div. 825) are res adjudicata against the plaintiffs in the law actions by the Hamburg Insurance Company and Behre and others, and those decisions require a "reversal of that part of the order appealed from which modifies the injunctions contained in the order of May 22, 1925, and grants leave to the plaintiffs to proceed to the trials of their actions and the entry of judgments.
We must rule likewise that the order appealed from in so far as it joins the receivers as parties defendant in the action and in so far as it enjoins the receivers from transmitting the surplus outside of the State of New York, should be reversed, as the order appointing such receivers has been reversed. Besides, the order appealed from should be reversed in so far as it grants leave to apply for-leave to issue execution upon any judgment recovered in the two suits, supra, because such provision falls with the reversal of the order permitting the prosecution of the suits. That part of the order appealed from in so far as it enjoins the Superintendent of Insurance from transmitting funds of the Second Russian Insurance Company outside the State, exceeding the sum of $300,000, should also be reversed, because these creditors have no lien at law or by judgment against these funds. They are mere claimants, not judgment creditors and wherever the funds are transmitted by the Superintendent under the law, whatever rights, if any, these suitors have will follow them.
As to the appeal by Albert Massey we think that the vexed situation involved as to the proper appearance was reasonably solved below and, therefore, the order should be affirmed in that respect.
The order in so far as appealed from by the Superintendent of Insurance is reversed iri so far as it modifies the injunctions contained in the order of May 22, 1925, and grants leave to the plaintiffs in the two actions mentioned to proceed to the trial of their actions and the entry of judgment; in so far as it joins the receivers and the Superintendent of Insurance in the actions; in so far as it enjoins the receivers and the Superintendent of Insurance from transmitting outside of the State and to others any surplus money, property or *109funds of the Second Russian Insurance Company except such as exceeds the sum of $300,000 of its assets in this State; and in so far as it grants leave to apply for leave to issue execution upon any judgment recovered in the two suits, with ten dollars costs and disbursements to the appellant Superintendent of Insurance, and the motion to modify the order of May 22, 1925, denied. The order in so far as it is appealed from by Albert Massey should be affirmed.
Dowling, P. J., Finch and Martin, JJ., concur; Proskauer, J., dissents in part.