Wachtel v. Harrison

145 N.Y.S. 982 | N.Y. App. Term. | 1914

Page, J.

The plaintiff sued the insurance company upon three separate policies of insurance upon the life of Mary Harrison, deceased. The defendant Joseph Harrison made a demand upon the company for payment of the amount due upon the policies and was by order of the court interpleaded, and the action was contested between him and the plaintiff, the insurance company having paid the amount due into court. Judgment was granted for the plaintiff for the full amount, with costs, and this appeal is taken from that part of the judgment which directs the amount due upon policy No. 4145182 to be paid to the plaintiff.

The policy in question is what is known as an industrial policy, which is a form of policy in which, for a small weekly premium, the life is insured for a small amount, in this instance seventy-five dollars. The policy and applications were placed in evidence and together form the contract of insurance. In the application Joseph Harrison, the defendant herein, was named as beneficiary and no right was reserved to the insured to change the beneficiary without his consent. The policy itself refers to the application and states that it “is hereby made a part of the contract.” It makes no further specific mention of a beneficiary except an agreement to pay the amount of the insurance “ to the person or persons designated on Condition Fifth herein. ’ ’ Condition fifth is a clause which states that a production by the company of the policy and a receipt for the sum assured signed by an executor, administrator, husband or wife or relative by blood or lawful beneficiary of the deceased shall be conclusive evidence that it has been paid to the person lawfully entitled to receive it. It has been frequently held that such a clause, which is common in industrial policies, is merely intended as a protection to the insurance company in making quick payment upon the policy and does not either “ grant or take away a cause of action from any person ” on the policy (Ruoff v. John Hancock Mut. Life Ins. Co., 86 App. Div. 447), so that, though the company might have been protected under the terms of the policy in making payment to the plaintiff (Cohen v. John Hancock Mut. Life Ins. Co., 135 App. Div. 776), the rights of the defendant as beneficiary are not affected by the clause. He is the beneficiary named in the policy and no right to make a change of beneficiary without his consent existed. Garner v. Germania Life Ins. Co., 110 N. Y. 266; Whitehead v. New York Life Ins. Co., 102 id. 143. The plaintiff’s alleged rights under the policy were based upon a paper signed by the deceased which purported to change the beneficiary to her name, but there is no evidence that it was consented to by the defendant and it is accordingly without legal effect. The defendant as the beneficiary designated in the policy is entitled to its proceeds together with whatever proportion of the mortuary bonus of forty-seven dollars and fifty cents has accrued upon the policy. As the proportion of the aggregate bonus which belongs to this policy has not been shown a new trial will have to be directed.

Lehman and Bijtjr, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.