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KELLY v. OVERSEAS INVESTORS

24 A.D.2d 157 (1965)

Audrey R. Kelly, as Insurance Commissioner of The Commonwealth of Pennsylvania, and as Such Statutory Liquidator of Empire Mutual Insurance Company (Dissolved), Appellant, v. Overseas Investors, Inc., et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

November 23, 1965.

Attorney(s) appearing for the Case

Richard Rodwin of counsel (Harry Rodwin with him on the brief; Rodwin & Rodwin, attorneys), for appellant.

Lawrence M. McKenna of counsel (John A. Sullivan, William S. Busch, Joseph J. Ackell and Burton K. Katkin with him on the brief; Simpson Thacher & Bartlett; Cadwalader, Wickersham & Taft and Baer, Marks, Friedman & Berliner, attorneys), for respondents.

George D. Zuckerman of counsel (Samuel L. Russ with him on the brief; Louis J. Lefkowitz, Attorney-General), for Henry Root Stern, Jr., Superintendent of Insurance, amicus curiæ.

VALENTE, McNALLY, STEVENS and STEUER, JJ., concur.

BREITEL, J. P.

The complaint in an action for fraud was dismissed on the ground that plaintiff, the Insurance Commissioner of Pennsylvania, was without capacity in this State to sue on a claim of a Pennsylvania insurance company in liquidation, either as statutory liquidator or as one vested with title to the assets of the company. She appeals. On the appeal, defendants, in addition to asserting plaintiff's lack...

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