Smith v. O'Neill , 267 A.D. 1037 ( 1944 )

s. Order reversed on the law, without costs of this appeal to either party, and motion granted, without costs. All concur, except Harris, J., who dissents and votes for .affirmance on the ground that the plaintiff being the next entitled to take as a beneficiary may have the advantage of the fraud worked on the codefendant Equitable Life Assurance Society, which fraud led to the naming of the individual defendant (under the designation of “sister”) as the first beneficiary to the policy; and Larkin, J., not voting. (The order denies a motion by defendant O’Neill for dismissal of the complaint in an action to recover death benefit under an insurance certificate written by defendant company upon the life of plaintiff’s husband.) Present — Cunningham, P. J., Taylor, Harris, MeCurn and Larkin, JJ.