294 N.Y. 282 | NY | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *285 In a complaint containing eight causes of action, the assignee of a judgment creditor of Louis L. Grey, deceased, suing as plaintiff "on behalf of himself and all other creditors of the estate of Louis L. Grey, deceased", alleges that the deceased "while insolvent, and with intent to hinder, delay and defraud his creditors, including the plaintiff's assignor", paid premiums upon policies insuring the life of the deceased "without consideration paid or given" by the persons named by the deceased as the beneficiaries of these policies. The plaintiff asks, among other things, that the payment of such premiums be declared null and void; that the defendant Harold N. Grey named as beneficiary of the policies which are the subject of the first five causes of action "be adjudged to hold the proceeds or avails of such policies received by him in trust for the creditors of said decedent, or subject to a lien of such creditors to the extent of the amount of such premiums paid and accrued interest"; that the individual defendants be required to account for all sums received by them on any policy; that all moneys in the hands of the defendants, including the insurance companies who have not yet paid the full amount of the insurance, "be subjected to a lien to the extent of such premiums paid and accrued interest"; and "that said defendants be required to pay the amount of said liens from the proceeds of said policies still in their hands into court to be administered according to law, pursuant to section 19 of the Personal Property Law".
The individual defendants have challenged the sufficiency of the allegations of each cause of action. The Appellate Division (
The complaint alleges that the defendant violated the provisions of section 166, subdivision 4, of the Insurance Law. The *286 Insurance Law now in force was enacted by chapter 882 of the Laws of 1939 as "Chapter 28" of the Consolidated Laws, and superseded the provisions of the Insurance Law enacted by chapter 33 of the Laws of 1909 and constituting the previous chapter 28 of the Consolidated Laws. Section 166, subdivision 5, of the Insurance Law now in force provides that "the rights of creditors whose claims were contracted or incurred prior to the effective date of this chapter shall be governed by sections fifty-five-a, fifty-five-b and fifty-five-c of chapter twenty-eight of the consolidated laws. This section insofar as it may differ, in form, language or substance, from said sections, is not intended, in any way, to affect the interpretation or construction of said sections as applied to such rights." The claims of the plaintiff in this action were contracted and incurred prior to the effective date of the Insurance Law now in force. It is for that reason unnecessary to decide whether difference in the form and language of section 166, subdivision 4, from the form and language of sections 55-a, 55-b, and 55-c, were intended to change in substance the rights of creditors whose claims were contracted thereafter. It is plain that subdivision 4 of section 166 may not be interpreted or construed as intended to affect the rights of the plaintiff's assignor, and we must measure the sufficiency of the complaint in this action in accordance with the provisions of the earlier statute as previously interpreted and construed.
Under such interpretation and construction of that section, the allegation contained in each cause of action pleaded by the plaintiff, that the deceased "while insolvent, and with intent to hinder, delay and defraud his creditors, including the plaintiff's assignor", is sufficient, even without any further allegation as to the source of the moneys used for such payment, or that the fraudulent intent was actual and not constructive. (Kain v. Larkin et al.,
The judgment of the Appellate Division should be reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division.
LOUGHRAN, LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.
Judgment accordingly. *288