In re the Submission of Controversy under Sections 546 & 547 of the Civil Practice Act between Chatham Phenix National Bank & Trust Co.

Townley, J. (dissenting).

The right of the insured to change the beneficiary named was conditional upon the consent of the company. The giving or withholding of this consent involved the exercise of discretion on the part of the company. Until such consent was given, the transfer was incomplete. (Hoff v. Hoff 175 App. Div. 40; appeal dismissed, 222 N. Y. 603.)

This consent was not given prior to death. Upon the death of the insured, the rights of the trustee became vested and could not be affected by any act or admission of the company made thereafter. (Strianese v. Metropolitan Life Ins. Co., 221 App. Div. 81; Fink v. Fink, 171 N. Y. 616.) The decisions in Luhrs v. Luhrs (123 N. Y. 367) and Lahey v. Lahey (174 id. 146) have no application. In those cases the right of the insured to change the beneficiary was absolute and the company’s acts were purely formal.

Judgment should be directed in favor of the trustee.

O’Malley, J., concurs.

Judgment directed that the Travelers Insurance Company pay the proceeds of the policies to Arlington I. Farnam and Alice Arline Hall. Settle order on notice.