Purvin v. Grey

269 A.D. 652 | N.Y. App. Div. | 1945

Lead Opinion

Per Curiam.

On the previous appeal (Purvin v. Grey, 267 App. Div. 813, affd. 292 N. Y. 671) it was pointed out that the allegations of the complaint were insufficient in that it was not alleged that the property withdrawn and transferred was the property of the debtor. The complaint in the present action, though redrawn to eliminate a statement made in the first complaint as to the source of the money, still fails to state that the deceased paid the policy premiums with his own money. There is an allegation that the deceased paid the premiums but there is no further statement that the money with which the premiums were paid was his property. The previous decision was clear and the plaintiff could have complied with it and repleaded in proper form had he been so advised. As it stands, the present complaint is wholly insufficient. Moreover, there is an adequate remedy at law for this type of claim. (Terner v. Glickstein & Terner, Inc., 283 N. Y. 299.)

The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.

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Dissenting Opinion

Callahan, J.

(dissenting). The complaint alleges that deceased debtor was the owner of certain insurance policies and that he paid certain specified premiums thereon while insolvent, etc. This seems sufficient to allege disbursement of debtor’s funds.

Furthermore, the action is in equity. The prayer for relief asks that a trust be impressed in favor of deceased’s creditors on the proceeds of the policies, and that a lien be imposed on moneys in hands of defendants. In addition, the action is for benefit of creditors of a deceased debtor. Its proceeds will not go to plaintiff but to the debtor’s estate to be disbursed through the Surrogate’s Court. (Gould v. Fleitman, 188 App. Div. 759, affd. 230 N. Y. 569.) These circumstances distinguish the present case from Terner v. Glickstein & Terner, Inc. (283 N. Y. 299).

The order appealed from should be .affirmed.

Martin, P. J., Townley, Glennon and Cohn, JJ., concur in Per Curiam opinion; Callahan, J., dissents in opinion.

Order reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.