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Mutual Life Ins. v. McCurdy

103 N.Y.S. 837 Court N.Y. App. Div. Decision date 1907-04-05 English

Delivered by LAUGHLIN, J.

Contents

Majority

p. 837
(118 App. Div. 827)
MUTUAL LIFE INS. CO. OF NEW YORK v. McCURDY et al.
(Supreme Court, Appellate Division, First Department.
April 5, 1907.)

Headnote

Action—Single or Several Causes of Action—Complaint.
The complaint in an action at law against A. and H. to recover various sums, aggregating a certain amount, alleged to have been abstracted from plaintiff insurance company by defendants, acting in concert and pursuant to a preconceived plan by which they fraudulently conspired and agreed, at a time when A. was president of plaintiff, to obtain, and did obtain, large sums from plaintiff for the benefit of II., through the employment of a firm, of which H. was a member, as an agent of plaintiff, on an unusual contract of agency, made without authority, by which the firm was paid exorbitant, commissions, grossly in excess of the fair and reasonable compensation for the services "rendered, states but a single cause of action for moneys lost to plaintiff through the fraudulent acts of defendants, acting in concert, in executing a preconceived conspiracy to obtain the moneys from
p. 838
plaintiff wrongfully and without authority, though renewals of the agreements from time to time at increased commissions are alleged; it being stated that this was pursuant to the original corrupt and fraudulent agreement and conspiracy, and such renewals, therefore, merely constituting steps in the consummation of the single scheme, plan, and purpose conceived at the outset to wrongfully and fraudulently obtain the moneys from plaintiff.
Appeal from Special Term, New York County.
Action by the Mutual Life Insurance Company of New York against Richard A. McCurdy and another. From an order denying a motion to make the complaint more definite and certain, and requiring that the facts constituting the several causes of action be separately numbered and stated, defendants appeal. Affirmed.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and SCOTT, JJ. .
De Lancey Nicolí (Courtland V. Anable, on the brief), for appellants.
Joseph H. Choate (James McKeen and Joseph PI. Choate, Jr., on the brief), for respondent.

This is an action at law to recover various sums of money, aggregating $1,002,841.66, alleged to haye been wrongfully abstracted from the plaintiff by the defendants, who are father and son, acting in concert and pursuant to a preconceived plan, by which they fraudulently conspired and agreed, at a time when the father was president of the company, to obtain, and did obtain, large sums of money from it, for the benefit of the defendant Robert H. McCurdy, the son, through the employment of a firm, of- which he was a member, as an agent of the company, on an unusual contract of agency, made without authority, by which the firm was paid exorbitant commissions, grossly in excess of the fair and reasonable compensation for the services rendered, and by the appointment of the defendant Robert H.'McCurdy to the office of superintendent of the foreign department of the plaintiff at an exorbitant salary, grossly in excess of the fair and reasonable compensation for the services rendered.

The allegations of the complaint are sufficiently definite. Although renewals of the agreements from time to time at increased commissions are alleged, yet it is alleged that this was pursuant to the original corrupt and fraudulent agreement and conspiracy, and therefore they merely constituted steps in the consummation of the single scheme, plan, and purpose conceived at the outset to wrongfully and fraudulently obtain the moneys from the company. The complaint states b.iit a single cause of action to recover the moneys lost to the company through the fraudulent acts of the defendants, acting in concert in exccuting a preconceived conspiracy to obtain the moneys from the company wrongfully and without authority. People v. Tweed, 63 N. Y. 194 ; Bosworth v. Allen, 168 N. Y. 157 , 165, 61 N. E. 163 , 55 L. R. A. 751 , 85 Am. St. Rep. 667 ; Mabon v. Miller, 81 App. Div. 10 , 80 N. Y. Supp. 979 .

It follows that the order should be affirmed, with $10 costs and disbursements. All concur.

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