Farmer v. National Life Ass'n — 26 N.Y.S. 126

Majority

p. 126

(73 Hun, 522.)

FARMER v. NATIONAL LIFE ASS’N OF HARTFORD.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Discovery—Examination of Plaintiff before Trial.

In an action on a life insurance policy, by . the assignee thereof, an order for the examination of plaintiff, to enable defendant to frame1 the answer, is properly granted, where the affidavit states that when the policy was issued it was the intention of the insured and of plaintiff that the insurance should be for the benefit of plaintiff only; that plaintiff paid premiums on the policy; that he haU no insurable interest in the life of the insured; that 'the insured did not apply for the policy, but that it was obtained by fraud, another man being falsely represented as the insured; and that it was issued on the medical examination of such person.

Appeal from circuit court, Kings county.

Action by Thomas Farmer against the National Life Association of Hartford, Conn., on a policy of life insurance issued to defendant " by one Thomas Brady, and by him assigned to plaintiff. From an order denying a motion to have an order for examination of plaintiff before trial to enable defendant to its peals.

Affirmed.

For former report, see 21 N. Y. Supp. 1056 .

Argued before BARNARD, P. J., and DYKMAN, J.

Judge & Durack, (James P. Judge, of counsel,) for appellant.

Roger Foster, for respondent.

This is an appeal from an order denying a motion made by the plaintiff to vacate an order for his examination before trial to enable the defendant to frame its answer. The affidavit upon which the order for the examination was obtained states, among other things, that the action is upon a policy of life insurance, for the recovery of $3,000 upon a policy made by the defendant to one Thomas J. Brady, upon his life, which, it is,alleged, was assigned by Brady to the plaintiff in this action. The defense to the action is that at the time of the issuance of the policy it was the intention of the assured, and of the plaintiff also, that such insurance should be taken out for the benefit of the latter only; that the plaintiff was the person who paid the premium upon the policy of insurance, and that he had then, and had thereafter, no insurable interest in the life of Brady; that Brady never applied for a policy, and that it was obtained by fraud; that another man, who falsely represented Brady, was examined by the defendant’s medical examiner before the policy was issued, and that it was so issued upon an application therein referred to, which contained warranties and representations respecting the health and occupation of.Brady, which warranties and representations were intentionally false; and that the policy never had a lawful inception and was niill and void. It

p. 127

is further alleged that the examination of the plaintiff is material and necessary for the defendant, to enable it to draw an answer, and make its defense to the action.

The affidavit is sufficient to justify the issuance of the order for the examination of plaintiff. The information essential to enable the defendant to draw an answer which can be intelligently and honestly verified is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge, except ■by an examination of the plaintiff. The vacation of the order was sought principally upon the ground that, upon the examination of the plaintiff, he might be required to give answers which would subject him to a criminal prosecution, but that objection is premature. The plaintiff must submit to the examination, and, if it appears then that answers to questions propounded to him may criminate 'him, that will be the time to raise the objection, and have the point determined. But it is not apparent that the matters upon which it is sought to examine the plaintiff involve any criminality. It is merely sought to ascertain the insurable interest of the plaintiff ;in the life of Brady, and whether it was the intention of the plaintiff that the policy should be issued to Brady, and assigned to him. •Our conclusion, therefore, is that the refusal to vacate the order for the examination of the plaintiff was justifiable, and should be afifirmed, with $10 costs and disbursements.