185 N.E. 696 | NY | 1933
On March 1, 1909, the defendant issued an ordinary life policy for $4,000 on the life of plaintiff's husband, payable to the plaintiff if she survived, otherwise to his estate. The application was made by the husband in his own name, and not in the name of his wife. On September 27, 1927, the husband obtained a loan from the defendant on an assignment of the policy bearing his signature and the forged signature of the plaintiff. The husband died on May 2, 1931. The defendant paid the amount due on the policy less the amount due on the loan. The plaintiff seeks to recover the amount so retained by the defendant.
Although section
It is the contention of the defendant that under the policy in suit the husband by express provision had the right to borrow without the consent of his wife. The particular provision to which defendant points, reads as follows:
"5. Upon request and the sole security of the policy properly assigned, the Company will advance at a rate of interest not exceeding six per cent an amount equal to (or at the option of the Insured less than) the then cash surrender value of the Policy, less five per cent, provided extended term insurance shall not then be in force. Failure to pay either loan or interest shall not avoid the Policy unless the total indebtedness to the Company on account thereof shall equal or exceed the cash surrender value of the Policy and any existing dividend additions, nor until thirty-one days after notice shall have been mailed to the last known address of the Insured and of any Assignee."
We may assume that this provision was put in the policy pursuant to the requirements of section
Caplin v. Penn Mutual Life Ins. Co. (
The judgment should be affirmed with costs.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; HUBBS, J., not voting.
Judgment affirmed. *455