Mutual Benefit Health & Accident Ass'n v. Holz

I concur in the decision to reverse, but on the following limited ground:

The superintendent’s decision to disallow the refund seems not to have been based on the free exercise of discretion to disallow it. He had such a discretion—he “ shall have power ” to do so (Insurance Law, § 559, subd. 1).

His determination of disallowance was based on the fact he read the statute as prohibiting the allowance in the circumstances shown by petitioner. The provisions of subdivision 1 of section 559 of the statute should not be read so narrowly, and the proceeding should be remitted to the superintendent…