47 N.Y. 430 | NY | 1872
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I think the action originally was properly brought by the plaintiff in her representative capacity against the insurance company. By the policy, the defendant undertook to pay to the assured, his executors and administrators, the sum of $3,000, ninety days after due notice and proof of the death of the assured, during the continuance and before the termination of the policy, $2,000 of said sum insured being for the express benefit of Jane, the wife, and $1,000 for Agnes, the mother of the assured. This was a contract made by the assured for the benefit of his wife and mother. The undertaking of the company, in effect, was to pay to the personal *435
representatives of the assured the sum specified in the policy for the benefit of his wife and mother. This constituted such representatives the trustees of an express trust within the meaning of section 113 of the Code, by virtue of which they were authorized to prosecute an action for the benefit of the wife and mother. That section provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted; a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. The order for making the mother and children of the deceased wife and the plaintiff in her individual capacity defendants, was made by the court upon motion of the insurance company, and they having been made such, pursuant to such order, the company is precluded from objecting that they were not properly joined with it as defendants. The judge before whom the cause was tried, received the testimony of the witness Fackler, subject to objection, but in determining the case rejected it as inadmissable under the pleadings, to which the counsel for the company excepted. This presents the important question in the case, as this testimony, if true, proved that under the statute of Massachusetts by which the company was incorporated, the policy expired in July 1867, before the death of the assured, which occurred in December thereafter. The counsel for the respondent endeavored to sustain this ruling upon the ground that this action was not based upon the policy, but upon an amount stated. This must be determined from the complaint and testimony given upon the trial. The former after stating the incorporation of the company, and the facts showing its right to transact business in this State, alleges the issuing of the policy by the company to the assured, and the terms thereof, from which it appears that the company on the 13th of March, 1865, in consideration of the sum of $123.90 paid, and of a like sum to be paid on the 13th of March, in each year thereafter, during the life of the assured, *436
conditionally, etc. The complaint does not state that any premium was paid to the company, after March 13, 1865, but proceeds to set out section 122 of the Massachusetts statute, passed April 10, 1861. The complaint admits the non-payment of the premiums as required by the policy, and avers that notwithstanding such default, there became due under said policy, in pursuance of the said provisions of the said act of 1861, the sum of $2,660.96, payable in ninety days after the said notice and proof of the death of the assured as aforesaid. The complaint further avers that John Greenfield, the assured, died December 9, 1867, and that on the sixth day of March, 1868, the plaintiff gave the defendant, the insurance company, notice and proof of the death of the assured, and that the company at that time, and at divers other times, waived any further or other notice of claims or proof of death, and promised to pay the sum of $2,660.96, on said policy. The company, by its answer, denied each and every allegation of the complaint, not thereinafter expressly admitted or denied. The answer admitted the incorporation of the company, the making of the contract of insurance, and some other matters, but did not admit that there was anything due upon the policy under the provisions of the aforesaid statute of Massachusetts. The allegation of the complaint, in this respect, was therefore denied by the answer. It devolved upon the plaintiff to prove it, if its truth was essential to a recovery. That it was so essential, is manifest for the reason that, upon the face of the complaint, it appears that in the absence of the statute the policy lapsed for non-payment of premium in March, 1867, nine months before the death of the assured. That it terminated at that time and ceased longer to impose any obligation upon the company, or promise to pay the amount made after the death, which occurred in December, 1867, would be without any consideration, and therefore void. The continuance of the policy in life, by virtue of the statute, was not only set out in the complaint as the basis of the right of recovery, but, in fact, was essential to such right, as without it there could be no pretence that the company, *437
at the time of the death of the assured, had any contract of assurance whatever upon his life. The plaintiff was, therefore, bound to prove this fact. It is clear, upon both principle and authority, that under a general or specific denial of any fact, which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it. (Wheeler v.Billings,
All concur.
Judgment reversed.