160 N.Y.S. 1064 | N.Y. App. Div. | 1916
Plaintiff, an insurance broker, sues for moneys which it advanced and paid to a life insurance company as premiums upon two policies written upon defendant’s life. Although the original answer is, in form, a general denial of all the material allegations of the complaint, it appears to be conceded that the two policies were issued to defendant; that plaintiff did in fact advance and pay the first premiums thereon, and that this was done by agreement with defendant.
The action was commenced on October 19, 1914, and issue was joined on December 28,1914, by the service of an amended answer containing, as already said, only denials. At defendant’s request his time to serve an amended answer was extended
The cause came on for trial on April 28,1916, and defendant attempted to prove, upon cross-examination of one of plaintiff’s witnesses, the facts which he now seeks to set up by an amended answer. The trial justice, while not refusing to receive the evidence, intimated very strongly his opinion that it was inadmissible under the general issue, and, if received, would after-wards have to be stricken out. Thereupon, at defendant’s request, the trial was discontinued in order that a motion might be made at Special Term for an amendment of the answer. The motion was afterwards made and granted by the order now appealed from. By this amended answer defendant seeks to set up as a defense the following facts: He says that in the year 1911 he desired, for business reasons, to insure his life for the sum of $100,000, and arranged with plaintiff to secure three policies for him, one for $75,000, one for $20,000, and one for $5,000, and that in consideration of being allowed to place this insurance plaintiff agreed that it would pay to defendant all of the commission which plaintiff should receive upon the first premium upon the $75,000 policy, which it represented would be about sixty per cent of said premium; that the premium upon the first policy amounted to $3,484.50, which defendant paid or caused to be paid; that he was informed by plaintiff that the commission which plaintiff would receive, and to which defendant would be entitled under the aforesaid agreement, would be about $2,800; that plaintiff would retain out of that sum the premium upon the two smaller policies aggregating about $1,160, and would, and thereupon did, pay to defendant the balance, amounting to about $1,700. The defendant’s purpose is to claim that, inasmuch as the giving and acceptance of rebates of premiums paid on life insurance policies is made illegal by statute, the agreement between himself and plaintiff was illegal, and no rights to either party can accrue thereunder. (See Penal Law, §§ 1191, 1200; Insurance Law [Consol. Laws, chap. 28; Laws of 1909, chap. 33], § 89, as amd. by Laws of 1911, chap. 249.)
There are present in this case none of the grounds which are usually assigned for permitting the service of an amended
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., McLaughlin, Dowling and Smith, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.