This is a very hard case for plaintiff, and the defense is a most unconscionable- one. Apparently a woman in humble circumstances and of limited education, in March, 1907, she took into her home a child named Josephine Curtin, who was her cousin, and was a little more than six years of age. The child’s mother was dead. Her father was living, but after leaving his child with plaintiff he disappeared, and for a time plaintiff did not know where he was. Plaintiff supported the child until the latter’s death on October 22, 1909, giving to her not only maintenance and clothing while she was in health, but providing medical care and attendance while she was ill. During the time that the child was with plaintiff her father contributed nothing to her support. In October, 1907, plaintiff took a policy of insurance issued by defendant company, paying out of her own pocket the premiums therefor, amounting to five cents a week, with apparent promptness, down to the date of the death of Josephine Curtin. In accordance with the provisions of the policy $120 would be due thereon at the time of such death if the terms and conditions of the policy had been fulfilled. , After presenting a proof of claim, to the form of which no objection seems to have been made, upon defendant’s refusal to pay this action was brought, and from a judgment entered in plaintiff’s favor this appeal is taken.
We do not see how this action can be maintained. The rights of the parties are fixed by the terms of the- contract. Under that the sum due in case of death is payable, not to plaintiff who, under the *168circumstances, might have had an insurable interest in the life of the child, but to “the executors, administrators.or assigns of the Insured,” Josephine Curtih. Plaintiff is not one. of the parties described. It may be that by reason of her payment of the-premiums oh the policy under the circumstances disclosed in this case, she would have an equitable lien upon the proceeds thereof (Morgan v. Mutual Benefit Life Ins. Co., 132 App. Div. 455), but-this is not such an action. There is a clause in the policy which reads as follows : “The Company may make any payment provided for in this Policy to any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the Insured, for his or her burial or for any other-purpose, and the production by the Company of a receipt signed by any oiveither of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that stich Benefits have been paid to the person or persons entitled thereto, and that all claims under this Policy have been fully satisfied.” Although this clause might give to the defendant' an opportunity which, it would seem, it .should welcome, to pay to plaintiff the small sum which came due under this policy, it has chosen to stand on its. strict legal rights. The. clause last-above quoted is one with which defendant may comply, but it' cannot be, compelled to do so. (Ferretti v. Prudential Ins. Co., 49 Misc. Rep. 489.)
The judgment appealed from must be reversed and a new trial ordered, without costs.
Woodward, Jeñks, Rich and Carr, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, without costs.