Levine v. Grey ( 1946 )

In an action to set aside, as fraudulent, designations of beneficiaries of the proceeds of a policy of life insurance, order denying defendant’s motion to dismiss the amended complaint and granting in part defendant’s motion to strike out several paragraphs of such complaint as irrelevant, modified by striking therefrom the second and third decretal paragraphs, and by substituting in place thereof a paragraph providing that the motion to strike out the said paragraphs of the amended complaint is denied. As thus modified, the order, insofar as appealed from, is affirmed, without costs, with leave to defendant to answer within fifteen days from the entry of the order hereon. For purposes of clarification we state that the action is affected by section 55-a of the Insurance Law of 1909 (L. 1927, ch. 468) and section 166 of the Insurance Law of 1940 (L. 1939, ch. 882); and that under the statutes an action based on a constructive fraud may not bé maintained; that plaintiff may not succeed except upon a showing of intent to defraud creditors; and that any recovery authorized is that of the amount of premiums paid with actual intent to defraud creditors, with interest. Further, the action being for an actual fraud, it accrued upon the discovery of the fraud. Paragraphs 9 to 14, inclusive, 23 and 24 of the amended complaint, though unduly detailed, may be construed as allegations of intent to defraud. Lewis, P. J., Hagarty, Carswell and Adel, JJ., concur; Nolan, J., dissents and votes to affirm. [See post, pp. 928, 929.]