
    Josephine H. Black et al., App’lts, v. The Homœopathic Mutual Life Insurance Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1. Pleading—Contract annexed to complaint—Legal effect of.
    No matter what may be the allegations in the complaint as to the legal effect of a-contract, if such contract is annexed to and forms part of the complaint, such legal effect must be gathered from the contract itself, and not from the allegations in such complaint.
    
      H. Insurance—(life)—Action—When cause of action exists.
    The complaint alleged the incorporation of the defendant, the issuance by them of a policy of insurance to the plaintiffs, and that defendart contracted to keep on hand during the continuance of said policy sufficient assets to meet the obligation on the contract aforesaid, in accordance with the rules prescribed by the statutes of the state, and the defendant had violated its contract and became and was and ever since has been insolvent, and that the present value of the policy (a copy of which was annexed to the complaint and formed part thereof), was $2,329.01 and judgment was demanded for this sum; on demurrer. Held, that the action could not be maintained. The contract of insurance/ contained no reference to the statute of the state, and no such contract as is alleged, nor are the statutes to be considered as though inserted in the policy. If the defendant is insolvent as alleged, proceedings should be taken for its dissolution and the distribution of its assets, but such insolvency gives the plaintiff no claim to a preference in the distribution of such assets.
    Appeal from judgment and order sustaining demurrer to complaint.
    
      Raphael J. Moses, Jr , for appl’ts; Stewart L. Wood-ford, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleged the incorporation of the defendant, the issuance, by the defendant, of a policy of insurance to the plaintiffs upon the life of William T. Black, that the defendant contracted to keep on hand, during the continuance of the said policy, sufficient assets to meet the obligation on the contract aforesaid, in accordance with the rule prescribed by the statutes of this state, and that the defendant had violated its contract aforesaid, and became, and was, and ever since has been, insolvent, and that the present value of the policy (a copy of which was annexed to the complaint and formed part thereof) was $2,329.01, and judgment was demanded for this sum.

To this complaint the defendant demurred, upon the ground that said complaint did not state "facts sufficient to constitute a cause of action.

This demurrer was sustained at the special term, and from the judgment thereupon entered, and the order sustaining the demurrer, this appeal has been taken.

No matter what may be the allegations in the complaint as to the legal effect of a contract, if such contract is annexed to and' forms part of the complaint, such legal effect must be gathered from the contract itself, and not from the allegations in such complaint.

The contract of insurance in this case contains no reference to the statutes of this state and contains no such contract as is alleged in the complaint herein.

It is claimed, however, that the statutes under which the defendant does business, are to be considered as though inserted in the policy.

We have failed to discover that the authorities cited support the broad proposition above claimed, no such question being involved in those cases, and none such being decided.

The plaintiff apparently bases his claim upon the language of the court in the case of The People v. Security Life Ins. and Annuity Co. (78 N. Y., 114).

Some of the language used in that case, taken alone apart from the questions adjudicated upon, supports the claim of the plaintiffs herein, but an examination of that case shows that the court had in mind a very different state of facts from those stated in the complaint herein.

The court was dealing with a defunct corporation, and was determining the question as to the rights of various claimants to share in its assets. It was held that the policy holders became creditors, because of the breach of the agreement to receive annual premiums, and carry the insurance to its term.

It is true that other and more far reaching language was used, but it is clear that the point upon which the attention cf the court was fixed, was the fact that the company had discontinued business, and had thereby made it impossible for the assured to pay premiums, and had thereby broken its engagement with its policy holders, whereby it became liable to them on account of the breach.

None of these features appear in the case at bar. The defendant, from all that appears upon these papers, is conducting its business as usual, and paying all claims made against it.

If the defendant is insolvent, as alleged, proceedings should be taken for its dissolution and the distribution of its assets, but such insolvency gives the plaintiffs no claim to a preference in the distribution of such assets merely because he has made the discovery.

The case of Lovell v. The St. Louis Mutual Life Ins. Co. (111 U. S., 264), which the appellant cites as directly in point, does not seem to have any application to the case at bar.

The right to maintain the action in the case last cited, was upheld because the defendant had terminated its business as a fife insurance company, and transferred all its assets and policies to another company, thereby reiterating the rule which had long before prevailed in this state. Fischer v. Hope Mutual Life Ins. Co. 69 N. Y., 161.

We fail to see anything in these authorities which in any way supports the contention of the plaintiffs, and until the right to maintain such an action receives the approbation of the court of last resort, we cannot import into our jurisprudence, so novel a procedure.

The judgment and order appealed from must be affirmed, with costs.

Brady and Daniels, JJ., concur.  