87 N.Y.S. 673 | N.Y. App. Div. | 1904
On the 7th day of April, 1900, the John Hancock Mutual Life Insurance Company, of Boston, Mass., issued a policy of life insurance upon the life of Herman O. Heinrich in the sum of $2,500, payable to his executors or administrators, upon satisfactory proof of his death. On the 14th day of August, 1900, the said Heinrich executed and delivered to the plaintiff an instrument in writing under his hand and seal, assigning the proceeds of said policy upon his death to her. . Said assignment was executed in duplicate upon blank forms furnished by the insurance company and under the rules of the company, one copy being filed in its office and the other given to the plaintiff as aforesaid. After the death of Heinrich.
We are of opinion, however, that the judgment should be modified by allowing to the defendant the sum of forty dollars, premium which he paid upon the policy after the death of the deceased. This premium was due prior to his decease and was required to be paid. It constituted, therefore, a proper allowance to be made to the defendant from the recovery. We also think that the costs and the extra allowance should not have been, awarded against the administrator personally. It does not appear that he was guilty of any fault in resisting the claim of the plaintiff, or in laying claim to the fund. While sections 1835 and 1836 of the Code of Civil Procedure are not technically applicable, to this case, because the judg
The judgment should, therefore, be modified in these respects, and as modified affirmed, without costs of this appeal to either party.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. . .