Stern v. Metropolitan Life Insurance

Headnote

Stern v. Metropolitan life Ins. Co., 169 App. Div. 217 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which reversed an order of Special Term sustaining a demurrer to an affirmative defense set forth in the answer and overruled said demurrer. The action is brought by the plaintiff to recover the sum of $180,000 as commissions from defendant, which commissions- he claimed were earned by him in placing over $3,500,000 of life insurance with the defendant company. The defendant has denied the material allegations of the complaint and in addition to said denials has pleaded an affirmative defense based on section 91 of the Insurance Law, to the effect-that the plaintiff had not procured a certificate of authority to do business as an insurance agent, pursuant to said section 91, and that the defendant is, therefore, prohibited from paying to the plaintiff and the plaintiff is prohibited from receiving any commission for the insurance alleged-to have been placed by him. The plaintiff demurred to this defense on the ground that the statute upon which the same is based is unconstitutional.

The following questions were certified: “1. Is the ‘ further separate and distinct defense ’ contained in the answer of the defendant sufficient in law upon the face thereof ? 2. Is section 91 of the Insurance Law of the state of New York as amended by chapter 301, Laws of 1909, constitutional ? ”