132 N.Y.S. 529 | N.Y. App. Div. | 1911
Both parties asked for the direction of a verdict in this case, and the court directed a verdict in favor of the plaintiff. The case does not vary essentially from those of Molara v. Prudential Insurance Co. and Madura v. Prudential Insurance Co. (147 App. Div. 578), decided at this term, and it would not be necessary to enter into further discussion, except for the fact that a ruling of the court is seriously urged as a ground for reversal. Defendant, in support of its affirmative defense, offered in evidence the proofs of death furnished by the plaintiff in this action. This was objected to upon the ground that such proofs of death were “ incompetent and irrelevant and not admissible here. ' The evidence is that these papers were signed by the widow of Harry Smith in the month of July, 1910, and. the letters of administration, already in evidence, were not issued to the plaintiff until the 2d day of December, 1910, and a representative is not bound by any admission made by her individually against herself in her representative capacity. ” This obj ection was sustained and *an exception was taken by defendant’s counsel. The question is as to the correctness of this ruling.
The policy, by its terms, is payable to the “executors or administrators of the Insured,” with certain exceptions not involved in this case, and the plaintiff, as administratrix, etc., alleged in her complaint, in paragraph 8, that “ due proof of the death of the insured during the continuance of the aforesaid policy was given to defendant by plaintiff,” and the answer “denies each and every allegation set forth in the paragraphs of said complaint numbered respectively ‘Eighth,’’ ‘Ninth’ and ‘Eleventh,’ except that this defendant admits that proofs of the death of Harry Smith were given to defendant by plaintiff and that this defendant has refused to pay,” etc. It was not necessary to the plaintiff’s cause of action, therefore, to put in evidence the proofs of death. The defendant made no claim that there was any failure on the part of the plaintiff to furnish the evidence of death; its defense was
The judgment and order appealed from should be affirmedwith costs.
Hirschberg, Thomas, Carr and Rich, JJ., concurred.
Judgment and order of the City Court of Yonkers affirmed, with costs.