Lowenstein v. Koch

Headnote

Lowenstein v. Koch, 165 App. Div. 760 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 5,. 1915, which reversed an order of Special Term granting a motion by plaintiff for judgment in his

favor upon the pleadings. The complaint sets forth in substance that plaintiff duly recovered a judgment against one Friedman in the sum of $1,523.63, which was duly entered and docketed in the office of the clerk of the county of New York on May 24, 1912; that thereafter execution in due form was issued to the sheriff of the proper county and was returned by him unsatisfied; that there is now due to plaintiff on said judgment the sum of $1,523.63, with interest; that supplementary proceedings were duly commenced against said Friedman, which are still pending" and have not been terminated; that about August 8, 1899, said Friedman insured his life in the New York Life Insurance Company in the sum of $5,000 by policy No. 973,090 in favor of his executors, administrar tors or assigns, or to such beneficiary as said Friedman might designate; that said policy contained a clause permitting said Friedman to change his beneficiary at will; that on or about April 9, 1900, said Friedman designated his sister, the defendant herein, as such beneficiary; that said Friedman died on February 15, 1914, without having ever assigned said policy and that on said date said policy was in full force and effect; that by reason of the foregoing plaintiff acquired and now has a lien on said policy and the moneys payable thereunder. The defendant demurred to the complaint on the ground “ that it appears on the face thereof that the same does not state facts sufficient to constitute a cause of action.”

The following question was certified: “Does the complaint herein state facts sufficient to constitute a cause of action % ”