175 Misc. 107 | N.Y. Sur. Ct. | 1940
In this discovery proceeding the individual respondent concededly dominates and controls the corporate respondent which concededly collected $541.55 representing commissions paid to it by insurance companies for placing insurance on real property owned by deceased individually.
The proof shows that after deceased died on October 12, 1934, ithe individual respondent terminated the services of the insurance representative of deceased. Shortly thereafter the individual
Unless respondents can establish some affirmative defense, they are bound to make restitution to the estate. In this situation there is identity between the individual and the corporate respondent. The funds here sought to be recovered are the property of the estate. Since they are funds procured by an agent to the detriment of his principal the profit or advantage belongs to the principal. (Lamdin v. Broadway Surface Advertising Cory., 272 N. Y. 133. See, also, cases cited in Matter of Browning, 172 Misc. 647.)
In the effort to meet the case of petitioner respondents assert an estoppel because of the fact that in December, 1934, a trust officer of the executor and its attorney attended a meeting at which the individual respondent was authorized to take charge of the insurance. Nothing in the proof by respondents shows any disclosure of an intention to benefit themselves personally. There is no factual basis for the claim of estoppel.
Separate defense is made because of section 188 of the Insurance Law. The court holds that it is not applicable to this situation. This section establishes a State policy designed to prevent discrimination among insured persons and to stablilize and standardize rates. The evil at which the section is aimed is the making of agreements between the insurance company and the insured whereby secret refunds or rebates are procured by the insured. Here the estate made no bargain for a rebate. In no true sense is it obtaining a rebate when it collects the secret profit made by its agent. The obligation of fidelity of agents and the public interest in the enforcement of that fidelity are substantial. There is no necessary conflict between the enforcement of the Insurance Law and the enforcement of the obligation of an agent who makes a secret profit out of his control over insurance placed for his employer. There is no corrupt bargain here between the insurance company and the insured. The incidental fact that the insured receives money in
The court holds that the commissions actually received by respondents are recoverable in this proceeding. The other harm to the estate may not be cured here whether caused by over insurance or the procurement of insurance unnecessarily on properties theretofore uninsured. This proceeding is necessarily limited to the recovery of the moneys which under the cited authorities are the moneys of the estate. The claim for damages must be pursued' elsewhere.
Submit, on notice, decree accordingly