160 N.Y.S. 225 | N.Y. App. Div. | 1916
This is an action in aid of an attachment. The complaint sets forth that in an action brought in the Supreme Court, New York county, by the Chelsea National Bank against Alfred H. Motley, Jr., a warrant of attachment was duly issued on September 16, 1914, in the sum of $1,101.25 which was duly served on defendant, the property levied upon consisting of an indebtedness of defendant to said Motley in the sum of $1,281.63, “being the cancellation value of two certain policies issued by The Travelers Insurance Company upon the- life of Alfred H. Motley, Jr., being numbers 128565 and 164700, respectively, and a demand upon said defendant The Travelers Insurance Company for a certificate from it showing the property claimed or indebtedness owing from the said The Travelers . Insurance Company to the said Alfred A. Motley, Jr.” It is further alleged: “That in response to said service of warrant of attachment and demand said defendant The Travelers Insurance Company duly made and delivered to the said Sheriff a certificate setting forth that the said defendant then held the sum of about $1,281.63, being the cancellation or surrender value of two certain life insurance policies upon the life of said Alfred H. Motley, Jr., but claiming, however, that said property did not belong wholly to the said Alfred H. Motley, Jr. A
“17. That in the month of July, 1913, both of said policies above mentioned lapsed because of the failure on the part of the insured to pay the premiums due thereon, and that thereafter and on or about the 28th day of July, 1914, said policies were both duly cancelled by the said The Travelers Insurance Company, at which time there remained a net equity of $744 on the policy number 128565 first above mentioned and a net equity of $537.63 on the policy No. 164700 second above mentioned.
“ 18. That the sum of $1,281.63, being the cancellation or surrender value of said policies above mentioned remains in the hands of the defendant and is now held by it.
1 ‘ 19. That by reason of the cancellation of said policies of life insurance upon the life of Alfred H. Motley, Jr., as aforesaid, the said defendant, The Travelers Insurance Company, on or about the 28th day of July, 1914, became indebted to the said Alfred H. Motley, Jr., in the sum of $1,281.63, and was so indebted to the said Alfred H. Motley, Jr., on the 16th day of September, 1915, at the time of the service upon it of the attachment in the action of Chelsea Exchange Bank against Alfred H. Motley, Jr.”
The certificate of defendant, given on the service of the attachment, annexed to the complaint as Exhibit “A,” shows that both the policies in question lapsed for failure to pay the premiums thereon and were canceled on July 28, 1914, “ at which time there remained a net equity of $744 under No. 128565 and a net equity of $537.63 under No. 164700. That there is nothing due by this Company solely to the said Alfred H. Motley, Jr.”
The copies of the policies attached to the complaint as Exhibits B and C contained provisions, in case of default in payment of premiums after the second year, for the automatic extension of insurance for certain terms, and for paid-up policies upon surrender of the original policies; they also contained tables showing, for the end of each year of the policies’ life, the term of such automatic extension, the amount of paid-up insurance obtainable, the cash surrender value and the loan
The defendant, for a first, separate and complete defense, repeating all the denials of its main defense, set up: “That there is a defect of parties herein in that neither the assured nor the beneficiary under the policies referred to in the complaint herein has been made a party to this action.” To this separate defense the plaintiff demurred for insufficiency. As the defect in parties plaintiff appeared upon the face of the complaint the defendant’s proper remedy was by demurrer. (Code Civ. Proc. § 488, subd. 6.) It is only where that defect does not appear on the face of the complaint that the objection may be taken by answer. (Id. § 498.) The objection is waived only .when it is taken neither by demurrer nor answer. (Id. § 499.) But the plaintiffs are in no position to raise the question by demurrer to the separate answer, as the latter incorporates denials which make it proof against demurrer and the plaintiffs cannot demur to only a part thereof. (Wiener v. Boehm, 126 App. Div. 103.) Furthermore “the rule is that on demurrer to an answer for insufficiency the defendant may
Clarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
■ Order reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to plaintiff to withdraw demurrer on payment of costs.