SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 25, 1969
BERNARD KAMER ET AL., RESPONDENTS,
ITT LIFE INSURANCE COMPANY OF NEW YORK, APPELLANT
Concur -- Eager, J. P., Tilzer, McGivern, McNally and Steuer, JJ.
We do not find it necessary to reach the question whether or not a life insurance company has an independent action against a third party to recover damages for fraud which induces the issuance of a life policy and whether such cause of action would survive the period covered by section 155 (subd. 1, par. [b]) of the Insurance Law. Incidentally, it is also to be noted that, as a general rule, in an action upon a partnership debt, a claim of a defendant against an individual partner may not be utilized as a setoff against the debt. (See 39 ALR 2d 295; Ruzicka v. Rager, 305 N. Y. 191, mot. for rearg. den. 305 N. Y. 798; Spofford v. Rowan, N. Y. 108; Harrison v. Vanderbilt, 9 N. Y. St. Rep. 810, affd. without opinion 120 N. Y. 622; Edelman v. Schwartz, 178 N. Y. S. 587; Ravold v. Fred Beers, Inc., 151 Misc. 628; Ladue v. Hart, 4 Wend. 583; Dob v. Halsey, 16 Johns. 34.)
Order and judgment unanimously affirmed, with $50 costs and disbursements to the respondents.
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