Hyperlawhypertext legal database Flaherty v. Metropolitan Life Ins. 78 N.Y.S. 824

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Flaherty v. Metropolitan Life Ins.

78 N.Y.S. 824 Court N.Y. App. Term English

Judges Argued before FREEDMAN, P. J., and TRUAX and GILDERSLEEVE, JJ.

Contents

Majority

p. 824
(38 Misc. Rep. 759.)
FLAHERTY v. METROPOLITAN LIFE INS. CO.
(Supreme Court, Appellate Term.
May, 1902.)

Headnote

1. Life Policy — Action by Assignee — Evidence—Sufficiency.
Action on a life policy by an assignee is not sustained where the complaint alleges that assignor was the husband of insured, which allegation is put in issue by the answer, and no proof is offered to show such fact, or that assignor was entitled to the proceeds of the policy.
Appeal from municipal court, borough of Manhattan, Second district.
Action by Mary Flaherty against the Metropolitan Fife Insurance Company. Judgment for plaintiff, and defendant appeals.
Reversed.
Argued before FREEDMAN, P. J., and TRUAX and GILDERSLEEVE, JJ.
Ritch, Woodford, Bovee & Wallace, for appellant.
Joseph I. Green, for respondent.

This is an action on a policy of insurance issued on the life of one Margrath Wilkinson. Judgment was rendered in favor of plaintiff. Defendant appeals. The plaintiff introduced an

p. 825
assignment of the policy to herself from one John Wilkinson. She also proved the death of said Margrath Wilkinson. She stated that said John Wilkinson was her uncle, but it does not appear from the testimony what was the relation of John to Margrath. The complaint, however, states that he was the husband, which allegation is-put in issue by the answer. There is no proof that said John Wilkinson was entitled to the proceeds of the policy of insurance, and plaintiff, the assignee of the policy, could only take the rights of her assignor, the said John Wilkinson. Culmer v. Grocery Co., 21 App. Div. 561 , 48 N. Y. Supp. 431 ; Insurance Co. v. Healey, 86 Hun,. 531 ) 33 N. Y. Supp. 911 ; 19 Am. & Eng. Enc. Law (2d Ed.) 96) The answer puts this claim of John Wilkinson in issue, and plaintiff, should have given affirmative proof in support of it. There are other omissions in the evidence, which it is not now necessary to consider in view of the fact that the judgment cannot stand for the reason above stated.

Judgment reversed, and new trial ordered, with costs to abide event.