Studwell v. Charter Oak Insurance

26 N.Y. Sup. Ct. 127

• Court: New York Supreme Court
• Decided: November 15, 1879
• Status: Published

Opinion

Per Curiam:

Under Rule 36 of the General Rules of Practice, the plaintiffs might have placed this action on the preferred calendar, on filing a note of issue in the form prescribed by the rule. Not having done so, they waive their right to have the case treated as preferred, oh the ground that the property of the defendant was held under attachment. The defendant, by the rule, is entitled to make a motion, on short notice, to have the same px’efexTed, but that right is not given to the plaintiff

We think, however, the cause of action is a preferred one under subdivision 8 of section 791 of the Code of Civil Procedure. It is an action against a corporation, founded upon an evidence of debt for the absolute payment of money, notwithstanding the contract in its inception was not absolute but conditional.

A policy of life insurance, which has matured and become due by the happening of the contingency provided for, and the expiration of the period for the payment of money, is, we think, an evidence of the debt for the absolute payment of money, within the meaning of the Code.

The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Present — Davis, P. J.; Brady and Ingalls, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.