Bohleber v. Waeldin — 52 N.Y. St. Rep. 605

Majority

p. 605

John Bohleber, App'lt, v. August Waeldin et al., Resp'ts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Assignment—Insubance policy—Redemption.

Plaintiff and his wife assigned to defendant S. a policy on plaintiff’s life payable to the wife, the assignment making the policy payable to 8., “as interest may appear.” In an action for redemption the complaint stated that the assignment was made when plaintiff was poor and was given on a promise by 8., for whom plaintiff worked, to pay the premium and keep the policy alive. The answer alleged that the assignment was for a full and valuable consideration. Plaintiff put in evidence the policy and assignment and rested, when the complaint was dismissed. Held, error; that plaintiff when he proved the assignment qualified by the words stated was entitled to an accounting and a re-assignment on payment of what was due.

Appeal from judgment dismissing the complaint for failure of proof.

Action for an accounting of premiums paid by the defendants or either of them on the policy of insurance in question, and that upon payment of the amount found due defendants deliver up two assignments of a policy of insurance on plaintiff’s life, and assign said policy to him. Plaintiff on the trial put in the documentary evidence and rested, whereupon the court dismissed the complaint for failure of proof.

Fernando Solinger, for app’lt; William A. Guck (S. T. Maddox, of counsel), for resp’ts.

It was proven on the trial that the plaintiff, in 1877, took out a policy of life insurance on his own life, pay

p. 606

able on his death to Mary Bohleber, his wife, and on her death to the plaintiff. Presumably the plaintiff paid the quarterly premiums to the Equitable Life Insurance Society, which company issued the policy, up to the fall of 1889. On the 14th of December in that year the plaintiff and his wife assigned the policy to the defendant, Charles Schmidt. Schmidt, on the 28th of March, 1892, assigned the policy to the defendant Waeldin. The title to assignment to Schmidt was qualified by the words “ as interest may appear.” These are common words, and have a definite meaning. It is a part of a transaction thus limited that the assignee can recover no more than he, as between the parties, has advanced upon the policy, and the plaintiff the remainder. Mussey v. Atlas Ins Co., 14 N. Y., 79 ; Pitney v. Glens Falls Ins Co., 65 id., 6.

With this fact in the case, the plaintiff was entitled to an accounting, and upon payment-of what was due to a re-assignment. His complaint was one to redeem, and the defendant Schmidt claimed the assignment was for a full and valuable consideration. This was an evasive issue. The plaintiff’s case was stated clearly. That the assignment was made when the parties insured were very poor. That the plaintiff lived with defendant and worked for him, and that the assignment was made upon Schmidt’s promise to pay the premiums and keep the policy alive. Of course, this was a good consideration, but it only secured the assignee for his payments under the assignment, and an answer that the assignment was for an adequate consideration fell short of what was required. The plaintiff had a right, therefore, when he proved the assignment, qualified bj' the words that tbe assignee was to hold the policy for all interests, to assume his own, proven by the policy, and to call on the assignee Schmidt for proof of his interest, so that he could repay all which Schmidt had paid on the faith and security of the assignment. Elsberg v. Sewards, 49 St. Rep., 778 .

The subsequent assignment of the policy to the defendant Waeldin is of no importance. Schmidt could only sell what he had to sell, and Waeldin took his title subject to the plaintiff’s right to redeem if he made out a case to redeem.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.