Opinion
June, 1935.
This action is in equity and the appeal is from an order denying defendant's motion to dismiss the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action, it appearing from the complaint that the plaintiff has an adequate remedy at law. The defendant is entitled to a jury trial and the plaintiff cannot foreclose a jury trial by an action in equity to rescind the contract without alleging and showing special circumstances which would show that the relief which it seeks by its action in equity would not be good as a defense to an action brought by the beneficiary under the policy. Such special circumstances are not alleged. ( Town of Venice v. Woodruff, 62 N.Y. 462; Globe Mut. Ins. Co. v. Reals, 79 id. 202; New York Life Ins. Co., v. Sisson, 19 F. [2d] 410; Insurance Co. v. Bailey, 80 U.S. [13 Wall.] 616.) Order reversed, on the law and facts, and application for judgment on the pleadings, dismissing the complaint, granted, with costs. Rhodes, Crapser, Bliss and Heffernan, JJ., concur; Hill, P.J., dissents.