MYRTIE A. JOSLYN, Respondent,
EMPIRE STATE DEGREE OF HONOR, Appellant.
APPEAL by the defendant, the Empire State Degree of Honor, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 2d day of December, 1910, upon the decision of the court, rendered after a trial at the Chemung Special Term, overruling a demurrer to the amended complaint.
E. W. Miller and C. A. Pickard, for the appellant.
Frank C. Ogden, for the respondent.
The defendant is a co-operative insurance company, and the plaintiff is the beneficiary named in a policy of insurance for $1,000 upon the life of one Samuel J. Joslyn.
The complaint alleges, among other things, the policy, the death of the insured and all that is essential to make out a cause of action under the contract. It then alleges that subsequent to the death of the insured, one L. W. Pierce, the vice-president of the defendant, acting for and in behalf of the defendant, and with intent to deceive the plaintiff and to
frighten, coerce and force her into a settlement of her claim against the defendant, stated to her that if she did not accept $500 in full settlement of the policy or benefit certificate, and deliver the same to him and release the defendant, 'that the said Pierce and the said defendant would have her said son's remains disinterred and removed from his grave so that said defendant might be able to further prove that the said Samuel J. Joslyn died by suicide, and the said Pierce further stated to said plaintiff that the remains of her said son, Samuel J. Joslyn, would never be replaced in his grave, and that she would never know what became of them.' The complaint further alleges that the said plaintiff believed and relied upon said statements, and was fearful that the defendant would carry out the threats of removing her said son's remains, and was frightened and coerced into receiving $500 as a full settlement of the moneys due her under and by virtue of the policy. It is also alleged 'that by means of such false and fraudulent statements and by means of such threats and cruel and willful misrepresentations, and by means of such coercion and duress, the said L. W. Pierce, said Vice-President of said defendant, and who was acting for said defendant, compelled the said plaintiff to receive from him the sum of five hundred dollars ($500.00) as a so-called alleged settlement of the moneys due said plaintiff under said beneficiary certificate and * * * by means of such corrupt and willful acts and by means of such threats, coercion and duress compelled said plaintiff to deliver to him and surrender up to him said policy of insurance and beneficiary certificate so issued by said defendant and delivered to said Samuel J. Joslyn as hereinbefore alleged.'
The plaintiff asks 'that the so-called alleged release and settlement made between said defendant and said plaintiff as aforesaid be rescinded, vacated and set aside, and that the defendant may be given credit for the sum of five hundred dollars ($500.00) paid to this plaintiff upon said alleged settlement to apply upon the amount due the plaintiff on said certificate, and that plaintiff may have judgment in her favor and against said defendant for the sum of five hundred dollars ($500.00), the balance thereof, with interest thereon, from the 1st day of June, 1910.'
The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
The theory of the defendant is that the plaintiff is bound to allege a return or a willingness to return the money paid by the defendant. The complaint in this case is within the scope of the ruling in Reynolds v. Westchester Fire Ins. Co. (8 A.D. 193), where the complaint alleged that the plaintiff was induced by the fraudulent representation of an agent of the defendant to abandon and settle a claim against the company for $3,400, and in lieu thereof to take $1,000 and release and discharge the company from all further liability thereon. The relief sought was to set aside and vacate the settlement and release, and to recover the whole amount justly due the plaintiff by virtue of the contract. The plaintiff did not allege a tender of the amount received, but asked that the amount thereof be credited and allowed to the company upon the amount so due and owing to her. It was there held that it was not necessary to actually restore the amount which the plaintiff had received; that it was sufficient if the judgment asked for, and which might be rendered in the action, can accomplish the same result.
If, however, we assume that this action is of such a nature that the equities of the parties cannot be fully adjusted by the judgment we are of the opinion that it was not necessary for the plaintiff to allege a return or to offer in the complaint to return the $500 received. It has been repeatedly held that where a party seeks to impeach a release or other instrument for a misrepresentation as to collateral matters he must return or offer to return the money or property received under it before he can maintain an action, but that rule is not applicable to a case of fraud in the execution of the instrument itself; that is to say, where the instrument was misread to the party signing, where there was a surreptitious substitution of one paper for another, where the nature of the instrument signed was not fully understood, or where, as alleged in this case, fraud and constraint overcame ...