(dissenting). This is an appeal from an order directing the Superintendent of Insurance to take possession of Citizens Casualty Company of New York for purposes of rehabilitation. The company was granted no departmental hearing on the report of the Insurance Department Examiner which *297asserted that the company was insolvent because of inadequacy of loss reserves.
The court below heard the petitioner’s testimony in support of its contention, but refused to allow respondent, Citizens Casualty, to offer testimony by way of contradicting the claims of the petitioner, although the court did permit respondent to make an offer of proof, which was ruled to be irrelevant to the issues before the court.
It appears that the court below was led to its conclusion as a result of a misunderstanding as to the power of the court in a situation of this kind. The court was not dealing with a case involving a review of an administrative decision. The Superintendent did not act as the result of any hearing given to the respondent, because no hearing was ever held on the merits in the Insurance Department. The first attempt to enforce the conclusions contained in the report of the Examiner was made when a proceeding was initiated, at Special Term, pursuant to article 16 of the Insurance Law, more particularly section 526. The latter sets forth the procedure to be followed in matters of this kind and provides for an order to show cause as to why the Superintendent should not have the relief prayed for, which must be served on the insurer. The section then goes on to state “ on the return of such order to show cause, and after a full hearing, which shall be held by the court or justice without delay ” the court shall either deny or grant the application. (Emphasis supplied.) At page 9 of the stenographic minutes the court below said:
“Let me make it perfectly clear what my views are here. It is my view the Superintendent of Insurance is a policeman to police the field of insurance and the Legislature has seen fit to give Mm certain powers of a summary nature incident to the functions of a policeman * * This court will not inquire behind any examinations or reports or examinations by the Superintendent, except insofar as it may be necessary to satisfy the court that he has made such an examination.
«« # # # j not entertain any hearing on the factual validity of his findings or the factual basis upon which he has made it.”
Again, at page 10 of the stenographic minutes the court said: “ * * * this court is not going to undertake to review those findings and substitute findings of this court for the findings which the Legislature has said the Superintendent of Insurance shall have full power and authority to make.”
*298Later, at page 570 of the stenographic minutes the court said:
“We are not trying the question of the solvency of the company ’ ’ and later, on the same page, it said: “We are trying the question of the reasonableness of the Superintendent’s finding of insolvency.”
The conclusions and reasoning of the learned court below, as above stated, are directly contrary to the intent of the Legislature. When the 1909 Insurance Law was proposed, the original bill would have authorized the Superintendent of Insurance to seize property of an insurance company whenever it appeared to him that it was insolvent. Constitutional due process objections were raised then, as now, based upon the argument that there would be a taking of property without a proper court hearing. Accordingly, before enactment, the statute was amended to provide for a “full hearing”. Referring to this amendment, the then Commissioner of Insurance stated in a memorandum as follows: “It will be noted also that the question of fact presented to the court is the existence of one of these causes, and not the mere decision of the superintendent that one of these causes exists.”
It is my opinion that the respondent was entitled to a full trial on the issues raised by the pleadings. The weight of authority holds that, where an action is characterized as administrative and no hearing was held, the court conducts a de novo inquiry into the facts. (8 Weinstein-Korn-Miller, N. Y. Prac., par. 7803.10.) In any event, we are not dealing here with the ordinary article 78 proceeding. The statute involved in the case at bar specifically provides its own method of judicial review and, therefore, whatever may be the rule under article 78 of the CPLR, it does not apply. The learned court below did not treat this case as one to be tried de novo because it specifically stated that all it was required to do was to inquire into the reasonableness of the Superintendent’s determination. But there was no determination by the Superintendent which could be reviewed by the court. There were charges contained in the petition of the Superintendent which, under the law, he was bound to prove to the satisfaction of the court which was required to hold a full hearing. Having refused to treat the case at bar as one requiring a trial de novo, it was simple enough for the court then to fall into the error of not allowing the respondent to submit the proof it had offered to meet that presented by the petitioner. Without discussing the offer of proof in its complete detail, suffice it to say that the respondent was prevented by the court’s ruling from showing that, contrary to the contention of *299the Superintendent, the respondent was not insolvent. At page 615 of the stenographic minutes the court said:
" Let me understand correctly. You propose to call witnesses here who will testify from their knowledge that the company, either as the officers or principal stockholders of the company, or as accountants retained by the company, in their opinion the company is solvent and they would buttress that with findings that they have made which would differ sharply with the findings that were reported on such examination, isn’t that so?
“ Mr. Judd: Yes sir. That is certainly a substantial part of our proof.
‘ ‘ The Court: On this application, I will not hear such proof. ’ ’
While it is true that the Superintendent asserts that he followed the formula provided in the statute with reference to reserves, etc., it was still open to the respondent to show that the alleged facts upon which the Superintendent was supposed to have applied such formula were not correct.
For the reasons above stated I dissent and vote to remand to Special Term for a full hearing, as required by section 526 of the Insurance Law.
Stevens, J. P., Steuer, Tilzer and McGivern, JJ., concur in Per Curiam opinion; Capozzoli, J., dissents in opinion.
Ordered entered on May 20, 1968, affirmed, without costs or disbursements.