133 Misc. 106 | N.Y. Sup. Ct. | 1928
Plaintiff, the administrator of the assured, moves to strike out as insufficient in law each of the four defenses to the various causes of action pleaded in the complaint. The first defense alleges that the policies which are the basis of the suit were applied for pursuant to a conspiracy between the assured and the beneficiary, which had for its object the collection of the insurance from the defendant company through the assured’s disappearance under circumstances which would indicate that he had died; that in accordance with the conspiracy the assured attempted to simulate a drowning in the belief that the beneficiary would rescue him and enable him to disappear and share in the proceeds of the policies after their collection; that the assured was, however, deceived by the beneficiary as to the contemplated rescue and was violently precipitated by the latter into the waters of Gravesend bay and drowned; that said drowning was the result of a deliberate and premeditated design on the part of the beneficiary to kill the assured and constituted murder in the first degree, for which the former was duly convicted, and that immediately on learning of the fraud the defendant company notified plaintiff that it elected to rescind and cancel the policies and offered to return to plaintiff the amount of the premiums theretofore paid. It seems to me that the foregoing allegations state a good defense to the causes of action on the policies. It is true that the conspiracy alleged did not have in view the drowning of the assured. Nevertheless, it cannot be gainsaid that according to the defense the latter’s murder was a direct, proximate and natural consequence of the conspiracy. The situation is, therefore, unlike that presented in Ampersand Hotel Co, v. Home Ins. Co. (198 N. Y. 495), where there was no causal connection between an attempt to defraud the insurer and the loss insured against. Nor is there any merit to the contention that section 101 of the Insurance Law prevents the company from raising the defense under discussion in that it provides that the policy and the application attached shall constitute the entire contract between the parties. It is improbable that section 101 was ever intended to deprive the insurer of the right to rescind the contract under circumstances such as those which are alleged to have existed here. In Smith v. National Benefit Society (123 N. Y. 85), although suicide was not a defense under the policy, it was held that the taking out of the policy with the intent of committing suicide was a fraud upon the insurance company which barred any recovery. That decision was rendered prior to the enactment of section 101 of the Insurance Law, but an examination of the opinion discloses that the holding was not based upon the existence of a provision