Whiting v. Fidelity Mutual Life Ass'n of Philadelphia , 134 N.Y.S. 696 ( 1912 )

Clarke, J.:

This was an action brought by the holder of two policies in the defendant company for equitable relief. It was an individual action. Upon the trial at Special Term the complaint was dismissed. Upon appeal to this court the judgment was reversed and a new trial ordered. (137 App. Div. 758.) Instead of taking the new trial the defendant appealed to the Court of Appeals and gave a stipulation for judgment absolute. The Court of Appeals affirmed the order of this court and ordered judgment absolute against the defendant on the stipulation on the opinion of Mr. Justice Scott below (203 N. Y. 597), and sent down its remittitur to that effect. Whereupon an order was entered by the Special Term making the judgment of the Court of Appeals the judgment of the Supreme Court and a judgment was thereupon entered. Thereafter plaintiff moved for a resettlement of said judgment, which motion was granted, and from the resettled judgment so entered the defendant appeals.

It was the duty of the Special Term to follow the directions of the Court of Appeals and to enter judgment absolute for the plaintiff. The controversy is over the form of the judgment to which the plaintiff was entitled and the main question is whether under the complaint the plaintiff was entitled to an interlocutory judgment for an accounting “ concerning all of its affairs.” The plaintiff did in Ms prayer for relief demand an accounting, but that prayer was as follows: “ To require the defendant to make an accounting to the end that it may be determined whether or not the assessments of the defendant under the terms of paragraph 10th of said ‘Conditions’ endorsed on the back of said policies, are reasonable, equitable and just.”

It seems to us clear that the accountmg required was solely for the purpose of ascertaming whether the assessments, which it was alleged had been improperly laid, were justified. By the judgment as originally entered every relief demanded in the complaint was granted, and it was especially adjudged that the defendant be enjoined from levying and collecting any and all premiums and assessments, beyond the annual sum of $109.55 on policy numbered 45322, which the complamt alleged was the yearly premium that plamtiff was entitled to a continuance of durMg the whole period of life, and the annual sum of $21.91 on policy numbered 45323, m regard to which he made the same allegation.

As. the judgment specifically provided that the defendant was not entitled to increase the annual premium, and as it was enjomed from canceling' the policies and from declaring them null and void unless the plamtiff should pay'certain advanced premiums and assessments or threatened advanced premiums or assessments, and was enjoined from levying and collecting any and all annual premiums and assessments beyond said sums, it is apparent that whether or not the said assessments were legally or properly laid is a matter of no importance. The defendant is enjoined from collecting them or from taking any adverse action to plaintiff in that regard. The said accounting would, therefore, impose a very serious burden upon the defendant in compelling it to account for all its affairs during a period of thirty years, without any possible benefit to the plaintiff, for he is by the judgment decreed to be entitled to all the benefits which he could possibly receive as the result of any such accounting.

We think, therefore, that the judgment appealed from should be vacated and judgment should be entered in the form as originally signed, with the exception that the statement that it was made on the motion of the attorney for the plaintiff should be stricken out, as that form of judgment was not proposed by the attorney for the plaintiff but by the attorneys for the defendant, with ten dollars costs and disbursements to the appellant.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment vacated and judgment ordered as directed in opinion, with ten dollars costs and disbursements to appellant. Order to be settled on notice.