269 A.D. 652 | N.Y. App. Div. | 1945
Lead Opinion
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
The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.
Dissenting Opinion
(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.