
    Caroline Stern, Appellant, v. The Mutual Life Insurance Company of New York and Others, Individually and as Executors, etc., of Abraham Wolff, Deceased, Respondents.
    First Department,
    December 30, 1915.
    Insurance — action on life insurance policy — complaint — allegation that defendant paid claims barred by Statute of Limitations — statement of cause of action against insurer.
    The plaintiff in an action on an insurance policy on the life of her husband claimed that the defendant company paid certain notes which were barred by the Statute of Limitations, and that the holders thereof induced her to acquiesce in the payment by falsely stating that they constituted a valid indebtedness. Provisions of the complaint examined, and
    
      Held, that it was properly dismissed as to the holders of the notes, because they were not charged with the misrepresentation of any fact, and their statement that the plaintiff’s husband owed them the amount represented by the notes being a mere conclusion of law may have been true, although the claim was barred by the Statute of Limitations, as said statute merely affects the right to recover.
    The complaint as to the insurance company states a cause of action.
    Appeal by the plaintiff, Caroline Stern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 11th day of February, 1915, upon the decision of the court after a trial at the Hew York Special Term, and also, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.
    
      D. W. Steele, Jr., for the appellant.
    
      Murray Downs, for the respondent The Mutual Life Insurance Company of New York.
    
      William E. Carnochan, for the respondents Otto H. Kahn and another, individually and as executors.
   Scott, J.:

Plaintiff is the widow of Dr. Lassar Stern, who died on September 27, 1908. At the time of his death he was insured in the defendant Mutual Life Insurance Company upon two policies, in which plaintiff was named as beneficiary. At his death there became due upon said policies $10,008, of which the insurance company paid $7,412.49 to the defendants Kahn and Wertheim, and $2,595.51 to plaintiff. The complaint, in which judgment is asked for $3,807.06, is very inartificially drawn, but it may be gathered from it that plaintiff’s claim is that the defendant company paid to the defendants Kahn and Wertheim the sum now sought to be recovered, in payment of two notes which were barred by the Statute of Limitations and, therefore, uncollectible. Her complaint against Kahn and Wertheim is that they induced her to acquiesce in the payment of these sums by falsely stating to her that they constituted valid indebtednesses of her deceased husband.

The complaint was dismissed as against all the defendants on the ground that it did not state facts sufficient to constitute a cause of action.

As to the defendants Kahn and Wertheim the complaint was rightly dismissed. They are not charged with the misrepresentation of any fact, and their statement that Dr. Stern owed them the amount represented by the notes, which was only a conclusion of law, may well have been true notwithstanding the claim had been barred by the Statute of Limitations, for that statute does not pay a debt, but merely affects the right to recover.

As to the Mutual Life Insurance Company, however, we think that the complaint, aided by its admissions contained in the 43d and 44th paragraphs of the answer, states a cause of action sufficient to put it to its defense.

The judgment appealed from is, therefore, affirmed as to the defendants Kahn and Wertheim, individually and as executors, with costs, and reversed and a new trial granted as to defendant Mutual Life Insurance Company, with costs to plaintiff to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment affirmed as to defendants Kahn and Wertheim, individually and as executors, with costs, and reversed and a new trial ordered as to defendant Mutual Life Insurance Company, with costs to plaintiff to abide event. Order to be settled on notice.  