Albright v. New York Life Insurance , 33 N.Y.S.2d 431 ( 1942 )

Plaintiff appeals from a judgment of the Broome Trial Term of the Supreme Court dismissing her complaint after a trial before the court without a jury. The action is for the reformation of an annuity contract issued by defendant to plaintiff’s husband. By its terms defendant agreed in consideration of the payment of a premium of $40,000 to pay to plaintiff’s husband during his lifetime an annuity of $2,577.60. After the payment of seventeen monthly installments of $214.80 each, the husband died and plaintiff then brought this action alleging that through mutual mistake on the part of defendant and her husband or through mistake on the part of the latter and design on the part of defendant the contract was issued. It is her contention that the contract contemplated and agreed upon was of the cash refund type. She also alleges that one-half of the single premium paid was her money and that she was a party to the agreement. The trial court found that there was no evidence of fraud and mistake and dismissed the complaint. Later the trial judge granted a new trial and on appeal from that order (261 App. Div. 419) this court in an opinion by Mr. Justice Foster reversed that order and reinstated the judgment of dismissal. The evidence sustains the finding of the trial court and the judgment must be affirmed. Judgment unanimously affirmed, without costs. Present — Hill, P. J., Bliss, Hefíernan, Sehenck and Foster, JJ.