While I agree to the modification of the order in some of its details, I dissent from the reversal.
The respondents assert a cause of action against the Second Russian Insurance Company. Their claim is not provable in the liquidation proceeding because they are non-residents. They are stayed from prosecuting to judgment their claim in a separate action by an injunction contained in the liquidation order. Their application for a modification of the injunction was denied in Matter of Second Russian Ins. Co. (Hamburg Ins. Co.) (219 App. Div. 46). The Court of Appeals dismissed an appeal from the order of this court on the ground that the determination involved merely the exercise of a discretion. (Matter of People [Second Russian Insurance Co.], 244 N. Y. 606.) It intimated, however, that at some future time “ after the payment of all domestic creditors [the Superintendent of Insurance] must turn over the funds to the persons entitled to them. We do not attempt at this time to say how this shall be done, nor to suggest what proceedings in equity may be taken to compel a proper distribution of these funds ratably to all creditors, or if none, for their return to the corporation or its stockholders.” Almost two years have elapsed since that order was made and respondents have endeavored in every conceivable form of application to be advised by the courts in what manner they will be permitted to litigate their claim. The present application is denied on the ground that our former decision was res adjudicata and on the further ground that the respondents may secure ample relief through the remedy suggested in Matter of Russian Reinsurance Co. of Petrograd (223 App. Div. 378).
I cannot see how the denial of a motion in the exercise of discretion in 1926 is res adjudicata on this motion. The facts alleged on this motion are different from those set forth on the prior application. Moreover, it has become increasingly apparent that the predicament of the respondents should be a potent incentive to a judicial determination of what their course should be.
*110The majority opinion suggests that the decision in Matter of Russian Reinsurance Co. of Petrograd (223 App. Div. 378) justifies the denial of this motion. That opinion remits the proceedings to the Special Term “ to be disposed of in connection with the adoption of an adequate plan for a just and final disposition,” but still fails to indicate to the Special Term what its action should be, for the reason that “ the Superintendent of Insurance contemplated submitting a plan ”— the nature of which is not stated. So far in the course of this litigation he has not only submitted no plan, but he has definitely refused to take any positive position (Matter of Northern Insurance Co. of Moscow, 223 App. Div. 870). The time has now come, in my opinion, when it is the duty of the courts to grapple with this situation and make some specific determination.
I can see no possible objection to a modification of the injunction contained in the liquidation order to permit these respondents to assert their claim by suit. The Superintendent of Insurance has in his possession nearly half a million dollars over and above what is required to respond to all claims provable before him against the fund in his hands. The State of New York has no interest in the disposition of this surplus, save to see that it goes to parties legally entitled to it. No consideration of public interest exists to move the court to debar these creditors from prosecuting their claim to judgment. Such a right would in no wise interfere with the possession of the fund by the liquidator.
While the injunction against the Superintendent of Insurance restraining him from transmitting the surplus outside of the State is too broad, it should issue to the extent of requiring him to hold this surplus until further order of the court made upon notice to the attorneys for the claimants. Thus, when the Superintendent is ready to pay over the money, the court can hear the claim of these respondents in the light of the situation as it exists. All that is immediately required is that the respondents be allowed to prosecute their action. This they can do with no embarrassment whatever to the Superintendent of Insurance or to the rights of any New York creditor.
Order so far as appealed from by the Superintendent of Insurance of the State of New York, as liquidator, etc., reversed, with ten dollars costs and disbursements to the said appellant, and motion to modify order of May 22, 1925, denied. Order so far as appealed from by Albert Massey, individually, etc., affirmed.