Opinion
May 12, 1933.
David Kachman, for defendant Jacob Wishner, for the motion.
Alfred C. Bennett [ Edgar F. Sachs of counsel], for the plaintiff, opposed.
Under section 55-a Ins. of the Insurance Law, the proceeds and avails of a policy are exempt only if payable to "the lawful beneficiary or assignee thereof, other than the insured or the person so effecting such insurance, or his executors or administrators." (Italics the court's.) Prior to the assignment of the policy the disability income payable thereunder belonged to the assured despite the fact that the policy was payable to his wife (See Donahue v. N.Y. Life Ins. Co., 259 N.Y. 98), and it was, therefore, not exempt from the claims of creditors. It follows that the right of the wife to receive the disability payments depends upon the assignment of the same to her. As a prima facie showing has been made that the assignment was in fraud of creditors, and as the exemption provided for in section 55-a Ins. of the Insurance Law is expressly declared to be inapplicable in the case of such an assignment, there is no merit in the contention advanced by the moving defendants. The motion for reargument is granted, but upon such reargument the original disposition is adhered to.