239 A.D. 487 | N.Y. App. Div. | 1933
The complaint alleges, among other things, that plaintiff, Continental Casualty Company, issued to the Gleasner Company a standard workmen’s compensation and employers’ liability policy of insurance, under an agreement with the Gleasner Company and its officers that said policy was not to cover loss due to the injury or death of (among others) William J. Gleasner, its president; that the premiums paid for said policy were based on
It is from the order granting such motion that this appeal is taken.
The answer, in addition to a general denial, alleges, in substance, that the policy, as issued, includes W. J. Gleasner in its benefits, and that plaintiff came into the compensation proceeding and filed a “ notice of controversy,” as it is called, in and by which it submitted to the Industrial Board its claim of non-liability because of mistake in the form in which the policy was issued, and the answer further alleges that the Industrial Board has full power to entertain the equitable defense to liability on the policy and to decide the issue raised by such defense, and to reform the policy on account of mutual mistake, and that the Industrial Board, having first assumed jurisdiction, and the plaintiff having, by its notice of controversy, actually submitted its cause to that jurisdiction, plaintiff cannot bring this action in Supreme Court.
Plaintiff’s motion for temporary injunction was granted by the Special Term on the theory that plaintiff never “ submitted its rights and claims to the jurisdiction of the Industrial Board.” The question is not now before us, and we need not decide whether plaintiff was bound to submit its claim for reformation of its policy to the referee of the Industrial Board, for it actually did so. It is
In the instant case the answer pleads the prior proceeding pending before the Industrial Board, and whether or not plaintiff was bound to submit its claim for reformation to the Board, it is clear that, for all practical purposes, it did so. In its notice of controversy, filed with the Board, plaintiff does not specifically ask to have its policy reformed but does deny its liability, and states, as its ground for denial of liability, that the name of deceased “ was not on the payroll ” and “ no premium was ever collected by the insurance carrier on any wages received by this deceased, * * * and for the above reasons our claim is that this is not a compensatable case, and reserves the right to controvert for such other reasons as may later appear.” In the colloquies that followed between the referee and counsel for plaintiff it appears, to be sure, that an equity action to reform the policy was freely talked of, but the fact remains that plaintiff’s counsel, by disclosing to the referee what a perfect right he had to a reformation, and what a complete defense he would have under the policy when reformed, urged upon the referee his duty to dismiss all claims against plaintiff. How can plaintiff be heard to say that it did not submit to the referee the very issue which it asked the referee to decide in its favor? For it is conceded that' plaintiff could not escape liability on the policy in its present form. Reformation was essential to the end sought, and in submitting to the Board its right to be relieved of liability it must have submitted its right to reformation 'as the only means by which liability could be escaped. Though no extended trial was had, affidavits were submitted and plaintiff
On this record we think the whole matter was submitted to the Board, which had full power to act, and that fact was pleaded in bar in the answer in the instant action. Even if there should be thought to be doubt as to whether the matter was actually submitted by the plaintiff to the Board, still that proceeding is open and the plaintiff is not as yet precluded from tendering the issue with complete formality.
The order appealed from should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.