Purvin v. Grey

185 Misc. 653, 57 N.Y.S.2d 480, 1945 N.Y. Misc. LEXIS 2893

Opinion

Koch, J.

Motion to strike out defenses is granted. The plea of res judicata interposed by the first defense should be stricken for the reasons set forth in companion motion decided contemporaneously herewith (185 Misc. 654). The defénses of Statute of Limitations are not valid. There are no decisions in this State construing former section 55-a of the Insurance Law (now subdivision 4 of section 166) with respect to the Statute of Limitations; that section is practically the same as in the Massachusetts statute. In Massachusetts it was held that a cause of action to recover premiums- paid- by an insolvent judgment debtor accrues- upon, the death of" the judgment debtor and net when the premiums are paid (York v. Flaherty, 210 Mass. 35). While the courts- in- Kentucky and New Jersey have reached a contrary decision, the determination. by the" Massachusetts court appears- to- be- proper. The cause of action should not be barred until six'years from the date of its accrual. (Civ. Prac. Act, § 48, subd. 2.) Inasmuch as the judgment debtor died in March, 1942, the Statute of Limitations: could; not have- run and cannot", be set up- an a batí to the present action,

The defense that the plaintiff has an- adequate remedy at l'aw is also insufficient since- the" Court of Appeals in- upholding the validity of the complaint has held that the action, was, properly brought in equity (294 N. Y. 282). Settle order.