McCarthy v. Prudential Insurance

Scudder, J. (dissenting).

The evidence makes it clear to my mind that the policy of insurance upon the life of plaintiff’s intestate was not an asset of the insured at the time of his death. His *355administratrix, therefore, acquired no title to it or to its proceeds and never was vested with any cause of action upon it. In the lifetime of the insured, he gave the policy to his sister, who kept it alive by paying up the arrears, and thereafter by paying the premiums until the death of the insured. It is contended that because the policy, by its terms, forbade its assignment, title to it remained in the insured. Doubtless the defendant could have raised, and could have availed itself of, this objection, but it could also and it did waive it for the benefit of Mrs. Foley, the sister of insured, because of her strong equities, and it settled with her under the facility of payment ” clause, entirely within defendant’s rights. There is no suggestion of fraud. The judgment appealed from, in my opinion, should be reversed.

Judgment of the City Court of Yonkers modified by reducing the amount of the recovery to the sum of $117, with interest from the date of the commencement of this action, and as so modified affirmed, without costs. Findings of fact and conclusions of law inconsistent with this,, decision are reversed, and new findings will be made. Settle order on notice.