Demarco v. Metropolitan Life Insurance

253 A.D. 563, 3 N.Y.S.2d 615, 1938 N.Y. App. Div. LEXIS 8494

Opinion

Crapser, J.

This is an appeal from a judgment of nonsuit and dismissal of the complaint for the recovery of premiums paid to the defendant on six insurance policies, issued by the defendant as follows: three on the life of Madelina Miccd, two on the life of Stella Dominelli, and one on the life of Michele Cassillo.,

There are two causes of action in the complaint; the first cause of action was one in fraud by reason of the defendant’s representations that said policies were valid, legal and enforcible; the second that they were barred because they were void under section 55 of the Insurance Law because they were issued without the consent, permission or knowledge of the assured and contrary to section 55 of the Insurance Law. The plaintiff was not related to the insured in any way and the proof showed that the persons upon whose lives said policies were issued did not know anything about the transaction until the time of trial.

At the close of plaintiff’s case a motion was made to dismiss the complaint and for judgment of nonsuit upon many grounds and was granted by the court, upon the ground that there was no fraud. The court declined to pass upon the second cause of action upon which proof had been offered — the illegality of the contracts under section 55 of the Insurance Law. The evidence as it stood at the time the motion was made was a prima facie case in favor of the plaintiff and it was error for the court to dismiss the complaint and to refuse to consider what had been offered under the second cause of action based upon the illegality of the policies under section 55 of the Insurance Law.

The judgment dismissing the complaint and granting the nonsuit should be reversed and a new trial granted, with costs to the appellant.

Hill, P. J., Rhodes, Bliss and Heffernan, JJ., concur.

Judgment reversed on the law and facts and new trial granted, with costs to the appellant.