Costikyan v. Travelers' Insurance — 35 N.Y. St. Rep. 824

Majority

p. 824

Siragan S. Costikyan, Adm’r, Resp’t, v. The Travelers’ Insurance Co., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

Pleadhtq—Action on insurance policy.

The complaint alleged the issuing of an accident ticket by defendant to' one B., who met his death by accident; that B. mailed the ticket to one Bertha Beman, who filed proofs of loss, but defendant refused to pay; that plaintiff is the administrator of B., and has obtained such ticket, and demanded judgment for its amount. Held, that the complaint stated but one cause of action, and that under the facts therein stated defendant would be fully protected in paying the money to plaintiff.

Aepeal from an order of the Erie special term, denying defendant’s motion requiring plaintiff to elect between causes of action or to make the same more definite and certain.

Clinton B. Gibbs, for app’lt; Abram Bartholomew, for resp’t.

The complaint alleges, in substance, that on the 27th day of June, 1888, the defendant, at the city of Chicago, issued an accident ticket insuring Stephen K. Babasinian against-accidents in the sum of $15.00 a week, or $3,000 if death occurred. That on the 26th day of the same month, in Niagara county, this state, the insured met his death by an accident on the -Rome, Watertown & Ogdensburg railroad.

That on the 17th day of September, 1888, letters of administration were issued to -the plaintiff in Cook county, Illinois, and on the 24th day of June, 1889, ancillary letters were granted to him in Erie county, in the state of Now York. That the insured mailed the ticket to Bertha W. Beman, who served proofs of loss on the defendant and made claim to the insurance. That the defendant refused to pay her on the ground that she did not represent the estate of the insured. That finally the plaintiff obtained the ticket or insurance policy, and Bertha W. Beman released her claim to the insurance. The complaint demands judgment for $3,000.

The defendant made a motion at the Erie special term, requiring the plaintiff to elect between the different causes of action alleged to be stated in the amended complaint, or to make the same more definite and certain. The motion was denied, and the defendant appealed from the order to this court.

There does not appear to be any obscurity in the amended complaint It alleges the issuing of the ticket, the sending it to one Bertha W. Beman; that after his death she claimed the money, which the defendant refused to pay; that the plaintiff became administrator of the deceased; that letters were issued to him in Illionis and also in the county of Erie; tha Bertha W. Beman delivered the ticket to him, surrendering all claim to the insurr - -c money. The administrator thereupon brought this action.

p. 825

No reason is seen why the action is not well brought. The administrator is the personal representative of the deceased, and is entitled to recover the amount secured by the policy. But a single cause of action is stated in the complaint. There is nothing in it indicating that anybody else except the administrator is the owner of the policy or entitled to the moneys due upon it. After the receipt of the money by him, if he is not the real owner, he must account to the person who is. Upon the facts stated in the complaint, the defendant would be fully protected in paying the money to the plaintiff.

The order of the special term was right, and should be affirmed.

Dwight, P. J., and Macomber, J., concur.