#### Henry Sauerbrunn, Jr., Respondent, *v.*Hartford Life Insurance Company, Appellant.

First Department,

November 14, 1913.

Insurance — policy on the assessment plan construed —pleading — demurrer to complaint in action against foreign corporation —■ jurisdiction.

Where a policy of life insurance on the assessment plan provides that after the insured attains the age of sixty years, he is assessable at a certain rate per thousand, and no greater rate of assessment is specified after said age, the company cannot impose a greater assessment when the assured attains the age aforesaid.

Where the defendant which issued the policy aforesaid is a foreign corporation and is sued by a policyholder, a resident of this State, for an injunction to restrain the collection of excessive assessments, the jurisdiction of the court is not raised by a demurrer to the complaint, but should be left to be determined when the plaintiff applies for judgment. Where the defendant, a foreign corporation, has been properly served with the complaint in such action the court has jurisdiction, and the question as to whether it will exercise it is one of discretion.

• Appeal by the defendant, Hartford Life Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the *122county of New York on the 7th day of February, 1913, overruling a demurrer to the complaint.

*John T. McGovern,*for the appellant.

*Hooker I. Coggeshall,*for the respondent.

Scott, J.:

The action is brought upon several identical insurance contracts issued by defendant, an assessment company.

Defendant is a Connecticut corporation. It is not alleged that plaintiff is at present a resident of this State; that defendant transacts any business in this State or has any property therein.

The contracts sued upon were made in 1881, within this State, whereof plaintiff was then a resident. They provide for the payment of an assessment upon the living contract holders whenever a death occurs, and a table is annexed to the contract showing the maximum rates of assessment to be levied, graduated according to the age of the person assured. According to this table a contract holder who has attained the age of sixty years is assurable at the rate of $2.68 per $1,000, and no greater rate of assessment is specified after the age of sixty years. The plaintiff claims, and with reason, that $2.68 per $1,000 per death is the most that he can legally be charged, since, as he says, he became sixty years of age on January 15, 1900. Notwithstanding he has been assessed, as he says, since he became sixty years of age at a rate much larger than $2.68, which he has paid in ignorance of his legal rights. The relief demanded is:

1. An injunction to prevent further excessive and illegal assessments.

2. An accounting to ascertain the amount unlawfully assessed upon and collected from plaintiff since January 15, 1900, when he became sixty years of age, and

3. The recovery of whatever may be found to be due upon accounting.

The defendant demurs:

1. That the court has no jurisdiction of the person of the defendant.

*1232. That the court has no jurisdiction of the subject-matter of the action.

3. That there is a defect of parties plaintiff and defendant.

An action similar to this was decided in favor of the plaintiff therein, and the judgment affirmed in this court and the Court of Appeals. *(Harrison*v. *Hartford Life Ins. Co.,*63 Misc. Rep. 93; affd. without opinion, 137 App. Div. 918; 201 N. Y. 545.) It does not appear, however, that in that action any plea to the jurisdiction was interposed.

The defendant argues strenuously that this court will not entertain an action which has for its purpose the regulation of the internal management of a foreign corporation. This argument is based largely upon the supposed inconvenience of carrying on accountings in diverse jurisdictions, and the inability of the courts in this State to enforce a decree against a foreign corporation. This argument is supported by a considerable number of decisions in this and other States, and has recently been strongly asserted in an action like this against this same defendant in the Supreme Court of Missouri. *(State ex rel. Hartford Life Ins. Co.*v. *Shain,*245 Mo. 78; 149 S. W. Rep. 479. See, also, *State ex rel. Minnesota Mut. Life Ins. Co.*v. *Denton,*229 Mo. 187.)

The question is not one, however, to be raised by demurrer. It goes not to the jurisdiction of the court, but to the question whether the court, having jurisdiction, will exercise it, and that depends upon whether or not the court could enforce a judgment if it made one. Strictly speaking the action is one of which the court has jurisdiction, if the circumstances are such as to justify its exercise. It has jurisdiction of the person of the defendant because process has been served in the manner provided by law. That the complaint states facts sufficient to constitute a cause of action and one of which the court has jurisdiction has been established by *Harrison*v. *Hartford Life Ins. Co. (supra).*The question which the defendant seeks to raise and which has been so strenuously argued before us can more properly be raised when the plaintiff applies to the court for judgment. It can then be determined to what judgment, if any, the plaintiff is entitled which the court can enforce.

It follows that the judgment appealed from must be affirmed, *124with costs, with leave to said appellant to withdraw its demurrer and answer within twenty days upon payment of all costs.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment affirmed, with costs, with leave to the appellant to withdraw its demurrer and to answer on payment of costs.