Mutual Life Ins. Co. v. McCurdy and McCurdy

Full title: THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v . RICHARD A…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 5, 1907

118 App. Div. 827 (N.Y. App. Div. 1907)

103 N.Y.S. 837

Opinion

April 5, 1907.

De Lancey Nicoll [ Courtland V. Anable with him on the brief], for the appellants.

Joseph H. Choate [ James McKeen and Joseph H. Choate, Jr., with him on the brief], for the respondent.

LAUGHLIN, J.:

This is an action at law to recover various sums of money, aggregating $1,002,841.66, alleged to have 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, 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 but a single cause of action to recover the moneys lost to the company through the fraudulent acts of the defendants, acting in concert in executing 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 id. 157, 165; Mabon v. Miller, 81 App. Div. 10.)

It follows that the order should be affirmed, with ten dollars costs and disbursements.

PATTERSON, P.J., INGRAHAM, CLARKE and SCOTT, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.