Opinion
Argued November 26, 1879
Decided December 9, 1879
Fred. I. Small, for appellant. George Doheny, for respondents.
This action was commenced for the cancellation and surrender of a policy of insurance upon the life of James H. Reals, deceased, upon the ground that it was obtained by fraud and conspiracy between the plaintiff's agent and the deceased, and for the reason that it was void, because the premium was not paid in cash and a note given for the same by the insured. The referee found that the charge of fraud was not established by the evidence, and that the policy of insurance was a binding contract of insurance upon the plaintiff, and directed that the complaint be dismissed. These findings are, we think, sufficiently supported by the testimony, and the case presented furnishes no ground for the interference of a court of equity. Such a court will not interfere to decree the cancellation of a written instrument unless some special circumstance exists establishing the necessity of a resort to equity to prevent an injury which might be irreparable, and which equity alone is competent to avert. That a defense exists is insufficient. Nor is it enough that the evidence may be lost: ( Town of Venice v. Woodruff, 62 N.Y., 462.) The fraud alleged is a conspiracy between the agent and the deceased. The fraud, if any, was not proved on the trial, as the referee found, and hence the action cannot be sustained upon that ground. The allegation that the plaintiff fears an action may be commenced, and by collusion with the defendant, Fowler, the agent of the plaintiff, an appearance be obtained, and from failure to answer or defend, a judgment may be entered against the plaintiff, or that the defendant will delay bringing on the action until evidence of the fraud and conspiracy shall be lost to the plaintiff, furnishes no ground for such an action. The testimony can be perpetuated under the statute, and any order or judgment obtained by a conspiracy to prevent the plaintiff's appearance or to procure such judgment fraudulently could be set aside upon motion. In fact, all the rights lently could be set aside upon motion. In fact, all the rights of the plaintiff could be amply protected in a defense to an action brought upon the policy, and there are no special circumstances calling for the interference of a court of equity: ( Fowler v. Palmer, 62 N Y, 533.) The referee was, therefore, clearly right in dismissing the complaint.
The various rulings in regard to the admission of testimony were entirely immaterial, as the action could not be sustained, and they do not demand comment. The objections made relating to the validity of the policy and the delivery of the same, are also unimportant, as these are matters of defense which may properly arise in an action upon the policy. We are unable to discover any valid ground for interfering with the judgment upon the referee's report, and are of the opinion that the same should be affirmed.
All concur.
Judgment affirmed.