Kittel v. Domeyer

• Decision Date: 22 May 1903
• Citation: 175 N.Y. 205,67 N.E. 433
• Parties: KITTEL v. DOMEYER et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 205

67 N.E. 433

KITTEL

v.DOMEYER et al.

Court of Appeals of New York.

May 22, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Wildemar Kittel against Charlotte Domeyer and others. From an order of the Appellate Division (75 N. Y. Supp. 150) reversing a judgment in favor of plaintiff, he appeals. Reversed.

George H. Fletcher, for appellant.

Charles C. Sanders and John Vincent, for respondents.

GRAY, J.

This appeal involves the construction of section 22 of chapter 272, p. 220, of the Laws of 1896-the Domestic Relations Law-which reads as follows, viz.: ‘A married woman may, in her own name, or in the name of a third person, with his consent, as her trustee, cause the life of her husband to be insured for a definite period, or for the term of his natural life. Where a married woman survives such period or term she is entitled to receive the insurance money, payable by the terms of the policy, as her separate property, and free from any claim of a creditor or representative of her husband, except, that where the premium actually paid annually out of the husband's property exceeds five hundred dollars, that portion of the insurance money which is purchased by excess of premium above five hundred dollars, is primarily liable for the husband's debts. * * *’ Frederick Domeyer, at the time of his death, in 1900, was carrying insurance upon his life to the aggregate amount of $40,000. Three of the policies, each for $10,000, issued by the Provident Savings Life Assurance Society of New York, the United States Life Insurance Company, and the Penn Mutual Life Insurance Company, in the years 1892, 1893, and 1895, were payable to Charlotte Domeyer, wife of the insured. Three other policies, aggregating $10,000, also issued by the Provident Savings Life Assurance Society in 1891, were payable to her; but they had been assigned in 1894 by her and her husband to this plaintiff, to secure the payment of an indebtedness due him from the deceased. This latter company paid into court the amount of its policy for $10,000, but it refused to pay the amounts of the other three assigned policies, inasmuch as they were claimed by the plaintiff and by Mrs. Domeyer. The other two companies paid the amounts due upon their policies to Mrs. Domeyer. The deceased was indebted to the plaintiff at the time of his death to the extent of nearly $19,000; and within a few months thereafter the latter commenced this action, alleging the insolvency of the deceased, and demanding a judgment that the amount of his claim be declared ‘a lien upon * * * that portion of the insurance moneys * * * which was purchased by the excess of annual premium over $500,’ and that ‘he be paid his said claim from the insurance moneys.’ He joined as parties defendant the insurance companies, Mrs. Domeyer, and the public administrator of the county of New York, to whom letters of administration had been issued upon Domeyer's estate. The issues in the action were tried at a Special Term, and upon the trial the plaintiff was allowed to amend his complaint so that it should appear that the public administrator had refused, upon demand, to bring this action. A decision was reached to the effect, in brief, that the allegations in the complaint were true; that the payments for premiums exceeded $500 per annum, and that they had been made by the deceased; that such proportion of the insurance money as was purchased by annual premiums in excess of $500 was impressed with a lien for the debts of the deceased in favor of all of his creditors, ratably; that the plaintiff should be paid, and should credit upon his claim, the amount due upon the three policies, which had been theretofore assigned to him; that the public administrator should be paid the amount of insurance moneys deposited with the court, and that Mrs. Domeyer ‘after deducting the amount of the insurance moneys purchased by the annual payment of $500, less the amount of the three policies assigned by her to the plaintiff, should remit to defendant Hoes [the public administrator] all of the proceeds of the policies collected by her.’ At the Appellate Division, to which court both plaintiff and Mrs. Domeyer had appealed, the judgment of the Trial Term was reversed, and the complaint was dismissed as to the latter. From the judgment upon this determination, the plaintiff has appealed to this court.

As the reversal was upon the law, the facts stand as established by the decision of the Trial Term. It is to be observed that that decision, while denying the particular and exclusive relief demanded by the plaintiff, in the application to his claim, preferentially, of the insurance moneys, yet sustained the action so far as to bring these moneys into the public administrator's hands for administration as a part of the estate of the deceased, and for distribution ratably among the creditors whose claims were proved. In determining how the fund for the satisfaction of the claims of creditors should be constituted, the trial court, in its decision, had held that the premiums paid upon the three policies, which had been assigned to plaintiff, should be considered as part of the $500, in determining the amount of the insurance which Mrs. Domeyer was entitled to. The Appellate Division considered it to be...