The plaintiff, claiming to be the owner thereof, sued upon a policy Or certificate of life insurance issued by -the Metropolitan Life Insurance Company of the city of Hew York." That policy was issued in 1884 to Adam Baker, and it recited that it wás so issued in consideration of representations and agreements in a printed and written application for the policy and in consideration of a premium to be paid at certain .times.' In the application Adam Baker stated that he was- a married man, and that the person to whom the benefit was to be paid Was his wife. At that time he *501was married to Bose Baker, who died, on or about the 12th of February, 1886. He married the plaintiff in August, 1964. It does not appear that the beneficiary named in the policy was ever changed. The plaintiff sued the insurance company, which admitted its liability and set up that other persons made claim to'the amount of' the policy, such other persons being the individual defendants in this action; that the plaintiff had been appointed administratrix of the goods, etc., of her deceased husband, and the matter in contest, as it eventually shaped itself ón the trial, involved only the inquiry whether the plainfiff was entitled to .the amount of the policy individually,' or should receive it as administratrix. The court below adjudged that she was entitled to the money only in the latter capacity. •
The judgment should be affirmed. It is claimed by the plaintiff that the policy was given to her by Adam Baker in consideration of her promise to.marry him. The proof, on that subject is insufficient to substantiate that claim. The only evidence in that regard ' was in the testimony of the witness Mary Sullivan,-who states that Baker said in her hearing that.if the plaintiff would marry him he had nothing else to offer b,ut his insurance, and his only desire was that none of his children should get it. On her cross-examination, however, it appears that that statement was made in February, 1901, and the plaintiff was not married" to Baker until 1904. There is not a syllable of proof to show that the policy ever was delivered to the plaintiff as a gift. She had been married to Baker only four months when he died. She says she paid the premiums quarterly, fifty cents a week. Proof of delivery is entirely wanting, and the judgment of the court below, as the case was tried, that she was entitled, to the amount- répresented by the policy only as administratrix, was clearly justified.
The judgment appealed from should be affirmed, with costs.
McLaughlin, Laughlin and Houghton, J J., concurred; O’Bbien, •P. J., dissented.