Plaintiff has brought this action to have it declared that she is the lawful beneficiary of an insurance policy on the life of her deceased husband and entitled to payment of the proceeds of the policy. The action is against decedent’s sister, who is the named beneficiary of the policy.
It is plaintiff’s claim that she had an agreement with her husband, founded on good consideration, that he would name her as beneficiary of a life insurance policy on his life, and deliver it to her for retention of the policy and its proceeds. It is alleged that decedent obtained such a policy and named plaintiff as beneficiary, but thereafter, pursuant to a conspiracy with defendant, decedent surreptitiously took the policy from plaintiff’s possession and caused the name of the beneficiary to be changed to defendant.
The question raised by defendant’s motion for summary judgment is whether the action may be maintained in the light of subdivision 9 of section 31 of the Personal Property Law, which renders unenforcible any “ contract to assign or an assignment ” of a life insurance policy, or a promise to name a beneficiary of any such policy, unless the agreement or some note or memorandum thereof is in writing. Admittedly there is no such writing in this case.
It is altogether clear that plaintiff’s claim flies in the teeth of the statute (Fischer v. New York Sav. Bank, 281 App. Div. 747). It is contended, however, that prior delivery of the policy to plaintiff takes the case out of the statute. We are unable to see why that should make a difference.
The purpose of the statute is a salutary one of protecting defined rights in insurance policies from disputation and involvement in litigation over claims resting on alleged oral arrangements with the deceased. Delivery alone is equivocal and assertion of the fact and terms of an alleged delivery unaccompanied by a writing is subject to all the abuses the statute was designed to avoid. To allow an assertion or even proof of a prior delivery of a policy to take a case out of the statute would be an unwarranted evasion of the statute.
The order appealed from should be reversed and the motion for summary judgment granted, with costs to appellant.