57 Misc. 608 | N.Y. Sup. Ct. | 1908
On or about February 5, 1906, defendant issued a policy of insurance on the life of one Luke McNevins, who was the husband of the plaintiff. This policy, among other things, provided for payment to any relative by blood or connection by marriage of the assured equitably entitled thereto by reason of having incurred expense for his burial or for any other purpose. On receipt of said policy the insured delivered the same to plaintiff, saying: “ Take this policy and pay on it.” Plaintiff thereupon took possession of said policy, retaining the same and paying the premiums thereon until the death of the insured. She also paid his burial expenses. There was no assignment in writing of said policy to plaintiff, nor did the policy by its. terms require a written assignment. Defendant maintains, however, that plaintiff had no legal capacity to sue by reason of her alleged failure to prove an assignment within the terms of the allegation of the complaint that, “ on or about the 5th day of February, 1906, the said Luke McNevins duly assigned, transferred and delivered said policy .to the plaintiff,” which allegation is denied in the answer. No motion was made to conform the pleadings to the proof. Unless otherwise specifically provided, a policy of insur
The judgment is right and should be affirmed, with costs.
Seabury and Gerard, JJ., concur.
Judgment affirmed, with costs.