Conklin v. Conklin

109 N.Y.S. 187 | N.Y. App. Div. | 1908

Lead Opinion

Miller, J.:

The plaintiff appeals from an order sequestering the personal property and the rents and profits of the real property of the defendant and appointing a receiver thereof for her benefit, but fails to point out how she has been injured thereby. If the receiver gets possession of any property of the defendant, the plaintiff will be benefited; if he does not, she will not be harmed. Much has been said about certain insurance policies, but the order does not deter*279mine who has title to such policies, and it is not a good reason for reversing the order that an issue respecting the title to them may arise between the receiver and the plaintiff. If the plaintiff has no title to said policies, it is but just that the defendant should be permitted to have the avails of them applied in payment or reduction of the amount due the plaintiff for aliiliony. If the plaintiff has title to them, the receiver cannot take them from her as he is appointed receiver of the defendant’s not the plaintiff’s property.

The order should be affirmed.

Woodward, Jenks and G-atnor, JJ., concurred; Rich, J., read for reversal.





Dissenting Opinion

Rich, J. (dissenting):

I dissent. This is the third time defendant has been in this court in proceedings to enforce the payment of alimony to his wife. Upon the theory that he has an interest in four policies of insurance upon his life the learned court at Special Term has made an order sequestering his property and appointing a receiver.

Defendant owns eight lots of unimproved land at Congers, N. Y., of uncertain value, but of no rental value, from which nothing would be available as rents and profits. The only pretended available assets are three policies: We are not called upon to pass upon the question as to who is the legal owner in this proceeding. In the event of defendant’s prior death policy No. 632,296 is payable to plaintiff. Default was made in the payment of premiums in 1901, and this policy is indorsed for reduced amount of paid-up insurance of $1,750 and has a present loan value of $660. Default has also been made in the payment of the premiums on each of the other three policies, and in 1902 they were reduced in paid-up insurance of $359 each. Plaintiff is named as beneficiary in each of these policies and each has a loan value of $230. They provide, however, that the beneficiary may be changed by written notice to the company at its home office “ accompanied by this Policy,” and defendant has attempted to change the beneficiary, but the policies have not been submitted to the company, possession thereof being in plaintiff.

The policies are in possession of plaintiff and are fully paid up, and I cannot see my way clear to assent to their being surrendered *280or used.as collateral. Under these circumstances I tliink.it was an improper exercise of the discretion of the court to direct the sequestration. It means that the plaintiff must surrender any rights she may have in the policies or the payment of the alimony now long past due will be held tip until the rights of the parties are determined, and I must, therefore, vote for a reversal of the order.

Order affirmed, with ten dollars costs and disbursements.