
    Avery v. Equitable Life Assur. Soc.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Equity—Reformation of Contracts—Pleading.
    A complaint seeking reformation which alleges a contract of insurance on the tontine plan, and that at the end of the tontine period the policy-holder would be entitled to a certain sum of money if he desired to withdraw; that the terms of the contract were contained in a paper which was preliminary to the policy, but which was referred to as containing the true construction of the policy; and that the policy did not express the contract,—is sufficient.
    2. Same.
    It cannot be objected to the complaint that such a contract as is therein set forth is subversive of the tontine plan of insurance, as such an objection is not applicable to a pleading.
    3. Same—Enforcement.
    A contract may be reformed, and enforced as reformed in the same action.
    4. Same—Part Payment.
    The fact that plaintiff had accepted a certain sum from defendant on account of the amount claimed to be due, less than that amount, does not bar the action
    Appeal from special term, Kings county.
    Action by Jane S. Avery against the Equitable Life Assurance Society of the United States. Defendant’s demurrer to the complaint was overruled, and defendant appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      Alexander & Green, for appellant. Phillips c6 Avery, for respondent.
   Barnard, P. J.

In March, 1873, Irving M. Avery procured a policy .on his life for $10,000. The policy was issued on the tontine savings fund plan, and was issued for the benefit of plaintiff, if living at his death, and, if not living, then to his children. The end of the tontine period was 15 years. At the end of the 15 years, if Irving M. Avery was alive, it was the right of the holder of the policy to withdraw the entire share of the assets, whether in the reserve fund proper, or in the accumulated assets. Irving M. Avery-survived the prescribed period, and the plaintiff’s husband, who then held the policy, elected to withdraw the entire cash assets according to the fifth condition of the policy, which is annexed, to the complaint. The company paid him $5,076.80. He demanded $7,170, which was refused. The basis, for this demand was that the real contract between the parties called for the payment of this sum of $7,170. The assured assigned the policy to the plaintiff, and she brings this action. The question arises upon demurrer. The plaintiff seeks to reform the policy, under which she has ho claim, and to make it conform to the real contract, and to recover upon the reformed contract. The action is proper. A contract may be reformed, and enforced as reformed in the sameaction. Maher v. Insurance Co., 67 N. Y. 283; Van Tuyl v. Insurance Co., 55 N. Y. 657. The contract is not conclusive as written under the rule that the real contract is considered to be finally expressed in the writing. Hoag v. Owen, 57 N. Y. 644; Bogardus v. Insurance Co., 101 N. Y. 328, 4 N. E. Rep. 522. The complaint is sufficient. It avers a contract of insurance on the tontine plan, and that at the end of the tontine period the holder of the policy would be entitled to receive $7,170 in cash, if he desired to withdraw on receipt of the cash value; that the terms of the contract were contained in a paper which was preliminary to the policy, but which was referred to and treated as the true construction of the conditions contained in the policy itself, that the policy does not express the contract. This brings the case within the rule stated in Jackson v. Andrews, 59 N. Y. 244. Whittemore v. Farrington, 76 N. Y. 452. The objection urged against the pleading, that a contract such as is set forth therein would be subversive of the tontine plan, is not applicable to a pleading. It may have much force upon the trial whether the defendant really made such a contract as is alleged in the pleading. There is nothing in the policy to indicate that it does not call for the amount claimed in the complaint as the cash value at the end of the period, if that sum was fixed by the preliminary agreement. The plaintiff is not barred of her action because she accepted the sum paid to her by defendant on account of the amount due. Steinbach v. Insurance Co., 77 N. Y. 498. A plaintiff had sued upon a contract as it was, and this was held to bar a new action to reform the contract. The doctrine of res adjudicata applied to such a case, because the same evidence would, support both actions. The pleading seems, therefore, to be sufficient, and the order and judgment should be affirmed, with costs.

Pratt, J., concurs.  