Ditmar v. Equitable Life Assurance Society of United States

Appellate Division of the Supreme Court of New York

Ditmar v. Equitable Life Assurance Society of United States

263 A.D. 945, 33 N.Y.S.2d 755

Appellate Division of the Supreme Court of the State of New York·Decided February 27, 1942·Published

Opinion

Per Curiam.

The allegations of the complaint concerning the effect of the decree of the Soviet government are allegations of fact which necessitate a trial of those issues. This is not inconsistent with the decisions in Appel v. New York Life Ins. Co. (285 N. Y. 629) and Dougherty v. Equitable Life Assurance Society (266 id. 71) where the same decree was considered and interpreted on the record then before the court. We are further of opinion that the causes of action which were stricken out by Special Term are governed by the Statute of Limitations applicable to sealed instruments. Those instruments are the foundation of the plaintiff’s claim, which entitle him to recover by operation of law if we assume the facts alleged to be true. (Compare Herter v. Mullen, 159 N. Y. 28; Dolan v. Rodgers, 149 id. 489; Houston & Texas Central Ry. Co. v. Southern Architectural Cement Co., 112 Tex. 139; 245 S. W. 644.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion denied.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied.

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Per Curiam.

The allegations of the complaint concerning the effect of the decree of the Soviet government are allegations of fact which necessitate a trial of those issues. This is not inconsistent with the decisions in Appel v. New York Life Ins. Co. (285 N. Y. 629) and Dougherty v. Equitable Life Assurance Society (266 id. 71) where the same decree was considered and interpreted on the record then before the court. We are further of opinion that the causes of action which were stricken out by Special Term are governed by the Statute of Limitations applicable to sealed instruments. Those instruments are the foundation of the plaintiff’s claim, which entitle him to recover by operation of law if we assume the facts alleged to be true. (Compare Herter v. Mullen, 159 N. Y. 28; Dolan v. Rodgers, 149 id. 489; Houston & Texas Central Ry. Co. v. Southern Architectural Cement Co., 112 Tex. 139; 245 S. W. 644.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion denied.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied.

Ditmar v. Equitable Life Assurance Society of United States, 263 A.D. 945, 33 N.Y.S.2d 755 (N.Y. Ct. App. 1942).

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Opinion

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