Barnett v. Prudential Insurance of America, 86 N.Y.S. 842

Barnett v. Prudential Insurance of America

86 N.Y.S. 842 | N.Y. App. Div. | 1904

Jenks, J. :

The deféndant contended that it has the right to adjust the amount' of the policy and to discharge it by the payment of a reduced amount because the assured ■ misstated her. • age in • her ‘ application.- At first the' court received certain evidence to support the alleged misstatement, but subsequently struck it out and directed a verdict for the plaintiff. Under objection and exception, the defendant put in the proof of the death of the assured as evidence of her age. It' is to be noted that -this proof, was made' by the attending physician, and was not verified by the plaintiff. Assuming that it Was evidence as against the plaintiff of the age of the assured, it is only so upon the theory of an admission by the plaintiff. (Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526 ; Spencer v. C. M. L. Ins. Assn., 142 id. 505.) But it did not appear that the plaintiff filed the proof. The plaintiff testified that when t • * ' he wrote to the defendant for instructions as to proof of death, it referred him to its local officers, and that he consulted with -them. In answer to the inquiry of the court, the plaintiff in person, - not then on the witness stand, stated that he did not furnish it, and thereupon the learned' counsel for the defendant admitted that he could not tell who furnished it—that he did not know. I think there is no presumption that. the plaintiff furnished it. While, -it was essential to the collection of his claim, yet it might well be that the defendant, apprised of the death, procured it for "its own assurance and protection. It -was incumbent upon the defendant, offering evidence which was competent as an' admission, to prove the circumstances which gave it such character.

The deféndant. also read in evidence, under objection as to its ■ relevancy, materiality and. competency, and exception, the record of the superintendent of the poor of Saratoga county, required by section 138 of the Poor Law (Laws of 1896, chap. 225), which, referring to the assured, showed the following: Name, Margaret' Connelly; *437Record Number, 1880; Date of Admission, Sept. 7, 1900; Readmitted, May 9,1901; Discharged by Death, May 24,1902; Sex, W.; Age, Sixty-five.” The plaintiff testified that he took an assignment of the policy on or about May 15, 1900, when it and the premium hook were delivered to him. He testified that the assignment was subsequently reduced to a writing, which was executed September 21,1900. He testified as to the consideration therefor, and |hat he had paid the premiums thereof even prior to May 15, 1900. The plaintiff at first did not offer the written assignment in evidence, hut after some colloquy with the court, offered it in corroboration of his evidence as to the oral assignment of May 15, 1900. The assignment, did not require a writing. (Marcus v. St. Louis Mutual Life Ins. Co., 68 N. Y. 625 ; Griffin v. Prudential Ins. Co., 43 App. Div. 499 ; Liberty Wall Paper Co. v. Stoner W. P. Co., 59 id. 353 ; affd., 170 N. Y. 582.) As the proof was sufficient to establish an assignment of May 15, and the plaintiff stood upon it, evidence of the declaration of the assignor in the following September was not competent. (Wangner v. Grimm, 169 N. Y. 421, 432. See, too, Terwilliger v. Industrial Benefit Assn., 83 Hun, 320.)

I think that the learned court (Garbbtson, J.) was right in its disposition of the case, and that the judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.