21 N.Y.S. 10 | N.Y. Sup. Ct. | 1892
This action was originally brought by plaintiff, as executrix of Albert Elsberg, deceased, against the Mutual Reserve Fund Life Association, David M. Koehler, and Samuel D. Sewards, to determine the conflicting claims made to two life insurance policies issued by said association upon the life of Albert Elsberg,—one for $2,000, and the other for $500. The life association made an application for leave to pay the money into court, and for a discontinuance of the action as a'gain'st it, which was granted, and the amount of the two policies was deposited, and so remained, subject to the order or decree of the court in this action. The defendant Koehler was not served, for the reason, which was made to appear upon the trial, that he had no interest in the policies; the same, after his indebtedness was paid, having been assigned to the defendant, Sewards, who alone answered and defended the action. It will thus be seen that at the time of the trial the question presented for determination was as to the conflicting claims of the plaintiff, as executrix, and Sewards, as creditor, of Albert Elsberg to the money paid by the life association into the court. The plaintiff, suing in her representative capacity as executrix, which was not denied by the answer, asserted that the amount due Sewards, for which the policies were assigned to him, did not exceed $1,500. The answer
According to the terms of the policies, which upon the trial were offered and admitted in evidence, it appeared that the same were issued to secure the payment to the defendant, Sewards, of an indebtedness-due him by the plaintiff’s testator, and were made payable to “Samuel D. Sewards, creditor, as his interest"may appear.” There was a further provision in the policies as follows: .
“An insurable interest, existing at the time of the assignment or transfer, must be shown by all claimants at time of claim hereunder, and claims by any creditor as beneficiary or assignee shall not exceed the amount of the actual bona fide indebtedness of the member to him, existing at the time of said death, together with any paj'ments made to the association under this certificate or policy of insurance by such creditor, with interest at six per cent, per annum; and this certificate or policy of insurance, as to all amounts in excess thereof, shall be void.”'
In addition, plaintiff’s counsel offered in evidence two letters, in the-handwriting of the deceased, signed by him, and bearing date six months before bis death; also a memorandum made by him four months before his death,—which, under objection, were, we think, properly excluded, because not shown to have been in any way communicated to the defendant; nor were they admissible as declarations against interest, having been offered by the plaintiff to establish a claim by the deceased in the fund. The plaintiff also offered in evidence a statement made by the defendant’s son, under his instructions, and which was shown to be a statement of notes held by defendant, which he wished to have renewed by Elsberg, the deceased, furnished by defendant in answer to a request by letter from Elsberg to the defendant. When questioned in reference to this statement, as to whether it did or did not show the condition of the indebtedness between the parties at the time, the defendant answered that this statement was only made for the purpose of showing the identity of certain notes, and did not embrace the account between the parties. While, therefore, only a partial account, we are inclined to think that it was admissible in evidence as tending to show the way, or the circumstances out of which, the indebtedness arose. However, it in no way prejudiced the plaintiff, because, though admissible, it did not go to the extent of showing what was the condition of the account between the parties, and could not be regarded as an account stated; it but appearing to be what the witnesses stated with reference thereto, that it was a statement merely of notes due, in respect to which arrangements looking towards renewals thereof were pending. Such being the situation of the parties upon the pleadings and the evidence at the close of plaintiff’s case, the defendant moved to dismiss the complaint, and for a judgment in his favor for the full amount deposited, which motion was granted, and the decree subsequently entered, from which this appeal is taken.
We are of opinion that it was error to dismiss the plaintiff’s complaint upon the proofs as they stood. She had made out a prima facie case, entitling her to the moneys realized upon the policies, subject, however, to any claim of the defendant creditor as the same should be made to appear. No doubt the learned trial judge was influenced by the pro
The question, therefore, presented, having in view the admissions in the pleadings, was, what was the extent of Sewards’ interest as creditor in such fund? We think that the burden of showing the extent of his interest was upon him, and that, after prima facie case made out by the plaintiff, upon production of the policies of insurance, the affirmative of this issue was upon such defendant. If, however, we assume that the affirmative was upon the plaintiff of showing the actual indebtedness to Sewards, and thus to establish her interest and title to the surplus, and that for failure of proof the complaint should have been dismissed, we