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Baker v. Crosby

11 N.Y.S. 575 Court N.Y. Super. Ct. Decision date 1890-11-03 English

Delivered by Freedman, J.

Contents

Majority

p. 575
Baker v. Crosby.
(Superior Court of New York City, General Term.
November 3, 1890.)

Headnote

Appeal—Weight and Sufficiency of Evidence.
Findings of fact will not be reviewed on appeal unless it is stated in the case that all the evidence given upon the trial is contained within it.
Appeal from special term.
Action by Genevieve ÍT. A. Baker against Edward C. Crosby, as executor, etc., of Alfred M. Ingham, deceased, originally brought against the Mutual Life Insurance Company of 2few York, to recover the amount of a policy of life insurance issued by said company to said Ingham upon his life. Plaintiff claimed under an assignment from Ingham which defendant claimed to be invalid. There was judgment for plaintiff, and defendant appeals.
Argued before Freedman and Truax, JJ.
William C. Holbrook, for appellant. Dailey & Bell, for respondent.

The record discloses no error in the admission of evidence. It also shows that the conclusions of law are fully warranted by the findings of fact. The real question, therefore, is whether the findings of fact are supported by sufficient evidence. The learned chief judge who tried the issues found, in substance, that the gift of the policy in suit was absolute, and not conditional; that it was fully executed; that there was a deli very of the assignment; and that the plaintiff accepted the assignment. There is sufficient evidence in support of these findings. Indeed, in view of the correspondence proved to have been passed between Mr. Ingham and the plaintiff, the trial judge could not very well have found otherwise. Possession of the policy is not necessary to the validity of an assignment, and the question of the delivery of the assignment and its acceptance is frequently one of intention, depending on the circumstances of the transaction. In this case, there can be but'little doubt as to the intention of the parties. Moreover, there is no certificate that the ease contains all the evidence. This of itself is fatal to the contention of the appellant. Porter v. Smith, 107 N. Y. 531 , 14 N. E. Rep. 446 ; and Aldridge v. Aldridge, 24 N. E. Rep. 1022 , (recently decided by the court of appeals, second division.) Upon the case as presented, there was no error in refusing the requests made by the defendant. The judgment should be affirmed, with costs.

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