The facts are fairly stated in the opinion of the Presiding Justice. However, my view of the relevant statutory law and legal principles impels a different conclusion. The deposit of security envisioned by section 59-a of the Insurance Law is analogous for all practical purposes to a special deposit within the contemplation of the Uniform Insurers Liquidation Act (Insurance Law, §§ 517-524). *241This conclusion is buttressed by the policy considerations underlying section 59-a of the Insurance Law and by construing said statute in light of sections 519 (esp subds 2, 30), 521 and 522 (esp subd 3) of the Insurance Law. Plaintiff is endeavoring to discharge its claim by resort to the deposit of security posted with the clerk of the court by the foreign insurer to secure the payment of any final judgment which may be rendered in this action against such foreign insurer. If no ancillary receiver has been appointed in this State, the claim must be filed with the domiciliary receiver (Insurance Law, § 521, subd 1). Of course, "[t]he domiciliary receiver of an insurer domiciled in a reciprocal state may sue in this state to recover any assets of such insurer to which he may be entitled under the laws of this state” (Insurance Law, § 519, subd 3).
Priority respecting a valid special deposit claim is assured under the Uniform Insurers Liquidation Act by virtue of subdivision 3 of section 522 of the Insurance Law. This statute was in existence at the time of the deposits of security herein. The various parties are, therefore, deemed to have constructive knowledge of the statute and its operative effect on their contractual relationships. Accordingly, the failure of plaintiff to obtain a judgment against the foreign insurer prior to the order (entered May 16, 1979) in Illinois appointing a receiver in liquidation due to the insurer’s insolvency, may not serve, of itself, to frustrate plaintiff’s endeavor to discharge its claim by resort to the special security deposit. After all, it was the making of such deposit which frustrated plaintiff in securing a speedy entry of judgment by default. By filing such deposit, the foreign insurer was enabled to contest the claim in New York. Under these circumstances, the determination of the viability of the plaintiff’s claim binding upon the domiciliary receiver or an ancillary receiver, if one is appointed, suffices to expose the deposit to the satisfaction of that claim. Any other result would serve to frustrate the public policy of affording residents of this State protection against obstacles encountered in pursuing rights which arise out of claims against foreign insurers and might well offend against traditional principles of equity. This also follows from the fact that the distribution out of the deposit is not predicated upon the insolvency or the liquidation of the foreign insurer, but merely on the fact that the given claim secured by that deposit has not been paid.
"The method most frequently pursued by creditors to reach *242funds or securities deposited by a corporation with a state official as security for its obligations, and the one most generally approved by the courts, is that of application for the appointment of a resident receiver of the corporation” (2 Couch, Insurance 2d, § 22:110).
Elucidation regarding the complex issues posed on this appeal may be gleaned from analysis of Matter of Casualty Co. of Amer. (Mackey Claim) (206 App Div 314) wherein we were confronted with the obverse factual situation. In that case, the insurer was a New York corporation which had made a special deposit of securities valued at $50,000 with the Treasurer of the State of Texas as a condition prerequisite to obtaining permission to do business in Texas. One year later, the insurer surrendered its right to do business in Texas, but failed to comply with Texas law requiring the filing of a bond for the protection of its outstanding contracts. However, the special deposit was left. Subsequently, two years later, the New York State Superintendent of Insurance was appointed receiver (liquidator) of the New York insurer. Thereafter, a Texas court appointed a receiver (by analogy, an ancillary receiver) to take possession of all assets of the New York defunct insurer in the State of Texas, which assets consisted of the special deposit already alluded to. Various creditors in Texas filed claims with the Texas receiver and the allowed claims were paid out of this deposit, thus exhausting this asset. Subsequently, certain Texas creditors who had not obtained satisfaction out of this asset, filed claims with the New York receiver (the domiciliary receiver) which were disallowed on the ground that the courts of Texas permitted the distribution by the receiver appointed in that State and had thus discriminated against citizens of New York who were creditors of the insurer.
We held that the special deposit by the New York insurer in Texas was to be deemed a trust fund for the protection of its obligations under its policies issued within the State of Texas, citing People v Granite State Provident Assn. (161 NY 492). We noted that "[t]he Texas courts have followed the New York Court of Appeals decision so far as they have proceeded. They have not distributed, and it does not appear that they have collected any of the general assets found in Texas; they have applied this trust fund only to the payments for which it was deposited. The opinion of the Texas Court governing this matter will be found in the case of Phillips v. Perue (111 Tex. *243112; 229 S.W. Rep. 849) where it was said: 'The questions certified are: 1. Whether the deposit with the State Treasurer constituted a trust fund to which the Texas creditors of the company had a claim superior to the right of * * * [the] liquidator of the company under the laws of the State of New York * * * The decision of the first question depends entirely upon the effect of our statutes governing the deposit. It was fully within the power of the State to prescribe the condition on which the foreign corporation might pursue its business within its borders. It therefore had the right to require of the corporation, if deemed necessary, the special deposit as a trust fund for the protection of its obligations arising under its policies so issued within the State * * * Having the authority to require the deposit and to give it the character of a trust fund for the benefit of such special creditors, if the Legislature has so provided by law, neither the corporation, having availed itself of the beneñts of the law, nor any one succeeding to its rights, can complain of an enforcement of the law. A law to which the corporation had voluntarily subjected itself would necessarily be binding upon its shareholders and other creditors and anyone standing in the stead of the corporation’ * * * [T]he law stated in the decision of the Texas court is in conformity with the law of the State of New York” (Matter of Casualty Co. of Amer. [Mackey Claim], supra, at pp 318-320; emphasis supplied).
We further noted the observation of the United States Supreme Court in Blake v McClung (172 US 239) that "[insurance funds set apart in advance for the benefit of home policy holders of a foreign insurance company doing business in the State are a trust fund of a specific kind to be administered for the exclusive benefit of certain persons. Policyholders in other States know that those particular funds are segregated from the mass of property owned by the company, and that they cannot look to them to the prejudice of those for whose special benefit they were deposited” (Matter of Casualty Co. of Amer. [Mackey Claim], supra, at p 322). Accordingly, we concluded that the Texas court was within its rights in appointing a receiver and distributing the fund deposited in Texas and that, in consequence, the New York receiver was incorrect in barring unsatisfied claims of Texas creditors in the New York liquidation proceeding merely because some Texas creditors were successful in obtaining priority and satisfaction of their claims from the fund deposited in Texas.
*244In light of the legal principles and well-reasoned rationale set forth in Matter of Casualty Co. of America (Mackey Claim), it must be concluded under the circumstances herein that the deposit of security given by the foreign insurer pursuant to section 59-a of the Insurance Law is in the nature of a trust fund and that plaintiff is entitled to seek the aid of the courts of this State in endeavoring to apply it to the purpose of which it was intended.
It has been aptly noted that "[t]he fact that assets of an insurer within two or more states are being liquidated does not affect the rights within a given state of the parties benefited by the deposit made in that state. The persons benefited by the local deposit may assert their claims against that local deposit and are not required to assert their claims in the domiciliary liquidation proceedings” (2 Couch, Insurance 2d, §22:111; see, also, Collins v Dacus, 211 Ga 779; Andrews v Cahoon, 196 Va 790).
It is further noted that the domiciliary receiver has now espoused the position advanced by the foreign insurer in this appeal. If the domiciliary receiver chooses to avail himself of the right to seek recovery of the deposit which is the subject of this lawsuit by becoming a party to this action pursuant to subdivision 1 of section 521 of the Insurance Law, then there would be no need for the appointment of an ancillary receiver. However, failing such action on the domiciliary receiver’s part, plaintiff is entitled to seek appointment of an ancillary receiver.
Accordingly, the order appealed from herein should be modified, on the law, as follows: The motion by defendant Reserve Insurance Company seeking dismissal or, in the alternative, a stay of the action as against it, should be granted to the extent of staying the action as against it with leave to plaintiff to request of the domiciliary receiver that he become a party to this action and advance his claim to the deposit pursuant to subdivision 1 of section 521 of the Insurance Law, and failing such action on the part of the domiciliary receiver, with further leave to plaintiff to seek the appointment of an ancillary receiver under the Uniform Insurers Liquidation Act, which receiver, by statute, must be the Superintendent of Insurance of this State (Insurance Law, § 519, subd 1). As so modified, the order should be affirmed.