204 Misc. 775 | N.Y. Sup. Ct. | 1953
This is a motion to dismiss the complaint, which contains two canses of action. The gist of the first cause of action is that the plaintiff and her deceased husband entered into an antenuptial agreement, by which the deceased, in consideration of the plaintiff's promise to marry him, agreed to procure a life insurance policy upon his life, of which the plaintiff should he and remain the sole beneficiary, to keep the same in effect during his lifetime, and to deliver the policy to the plaintiff as her sole property. The plaintiff married the deceased in reliance on this promise and after the marriage the deceased to carry out his promise and agreement procured
The individual defendant has moved to dismiss the first cause of action on the ground that the agreement, not being in writing, is unenforcible, because not to be completed before the end of a lifetime and made in consideration of marriage (Personal Property Law, § 31). In her brief the individual defendant has confined her attack to the latter ground, that the agreement was made in consideration of marriage.
The agreement as pleaded is one made in consideration of marriage. It is not open to question that if the first cause of action is brought solely upon this agreement, the absence of a writing is a bar to relief. Nor does marriage constitute such performance as to remove the bar (Matter of Goldberg, 275 N. Y. 186, 193; Hunt v. Hunt, 171 N. Y. 396; Matter of Keeler, 186 Misc. 20).
On the other hand, if the insured delivered the policy to the plaintiff with the intention of vesting complete ownership in her, there was a valid assignment. An effective gift of an insurance policy may be made by delivery, without writing (John Hancock Mut. Life Ins. Co. v. Sandrisser, 95 N. Y. S. 2d 399; McGlynn v. Curry, 82 App. Div. 431; Tepper v. New York Life Ins. Co., 89 Misc. 224). Though the allegations of the first cause of action are not as direct and unequivocal as they might be, giving the pleading the liberal interpretation it should receive on this motion, I think enough is stated to spell out an assignment
The individual defendant also challenges the second cause of action for insufficiency. In this cause of action the plaintiff charges that the change of beneficiary was brought about by fraud and undue influence practiced on the deceased by the individual defendant. It is contended that the representations were expressions of opinion or promissory and that the allegation of undue influence is conclusory. It is unnecessary to set out the allegations. Much of the second cause of action is undoubtedly subject to the criticism leveled at it. Nevertheless, study persuades me that it does set out at least some statements of fact which, if established, will sustain the charge of fraud. The motion to dismiss the second cause of action is likewise denied.
The individual defendant may answer within ten days after service of a copy of this order with notice of entry.