
    Fulton v. Met. Life Ins. Co.
    (City Court of New York—General Term,
    December, 1892.)
    Premiums paid upon policies of insurance, void ab initio, may be recovered back in an action for money had and received.
    Appeal from judgment in favor of plaintiff entered on verdict of a jury.
    .The facts are stated in the opinion.
    
      Arnoux, Ritch & Woodford, for defendant (appellant).
    
      Albert I. Sire, for plaintiff (respondent).
   Fitzsimons, J.

The defendant is a life insurance company; it employs agents who canvass for insurances for it. The one whose life is proposed for insurance, must sign the application for insurance, otherwise the company is not liable upon the policy issued in response to such application. The agent of the defendant is required to personally see and examine the proposed insured and satisfy himself of his identity. About March, 1888, the plaintiff, desiring to have the life of her father, Jacob C. Stoner, insured for her own benefit, made application for such insurance to defendant through one Walsh, who was its agent, and who called at plaintiff’s residence for the purpose of obtaining insurance in defendant’s company. Tier father at that time resided in Ohio. She signed his name to the application blank, in the presence of defendant’s said agent, who then signed his name to it, certifying that he had seen and examined Jacob C. Stoner, and recommended that he be accepted by defendant. Subsequently two policies were issued by defendant. The premiums on such policies were payable weekly, sixty cents each week. This sum was collected in that way by defendant’s collectors until plaintiff had paid $106.60. She then called upon defendant’s secretary, Mr. Gaston, who refused to admit that said policies were valid against defendant; but according to plaintiff’s story, he said that they were void. Plaintiff then demanded the sum of money-paid by her to defendant, which was refused. Thus this action was commenced for the recovery of the same. The complaint is for money had and received by defendant for plaintiff. Judgment was ordered for plaintiff.

The agent of the defendant, Walsh, had authority to receive applications for insurance; that, apparently, was the purpose of his employment by defendant. He called everywhere and anywhere where he supposed that the object of his employment would be gratified. The insured was required to sign in his presence, and he was privileged even to certify to the fitness of the insured. All knowledge and information communicated to him and which was within the province of his authority, was communicated to defendant itself. Therefore, the defendant knew at that time, for as above shown, its authorized agent knew, that Jacob C. Stoner never signed the application for insurance, but that the same was signed by plaintiff, and that the policies of insurance issued in pursuance and as a sequence of such application were void as against defendant, unless the signature of insured was waived, which was not done. Walsh, while acting within the scope of his authority, knew that Stoner did not sign the application, but that the same was signed by plaintiff, she signing her father’s name, and, therefore, defendant is deemed to have known that fact also, although never communicated to it. Cox v. Pearce, 112 N. Y. 640. The policies being void ab initio as against defendant and known to be so by it, it suffered no risk; it should not have received but should have refused the money paid by plaintiff, and it would be wrong and unjust to permit it to retain the same.

Although the statement made by Walsh to plaintiff that she had the right to sign her father’s name to the application was. unauthorized and not binding upon defendant, yet such states ment was certainly relied upon by her. She paid defendant the money received by it, relying upon such representation, and it would not be just or equitable to permit it to profit by its agent’s wrongdoing. The form of this action is proper. The case falls within the familiar doctrine that money in the hands of one person equitably due another, may be recovered in such an action. The action for money had and received to the use of another, is the form in which courts of common law enforce the equitable jurisdiction. Where one person has money in his possession which he cannot conscientiously retain from another, the latter may recover in this form of action. Roberts v. Ely, 113 N. Y. 131. The defendant, by claiming the right and title to plaintiff’s money, while refusing to her the benefits flowing from the policies issued to her, because of the irregularity mentioned, is doing an unconscionable thing, which should not receive the sanction of a court of justice.

I do not think that it is the policy or purpose of the law to aid in the consummation of such a wrong. The trial justice, upon the testimony submitted, would have been justified in directing a verdict for the plaintiff upon his own motion. Finding no error, the judgment is affirmed, with costs.

Ehrlich, Ch. J., concurs in result.

Newburger, J.

I concur in the result. See opinion of Judge Bischoff in Fulton v. Metropolitan Life Insurance Co., 19 N. Y. Supp. 660.

Judgment affirmed.  