
    Ellen Gould, as Executrix, etc., of Libbie A. Werner, Deceased, Appellant, v. The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Defendant and Samuel T. Fisher, Respondent.
    Third Department,
    June 27, 1906.
    Life insurance — action to have absolute assignment of policy declared to be made as security only—evidence raising question for jury— release — error in excluding evidence of incompetency of insured.
    When in an action to recover the proceeds of a life insurance policy which was assigned by the insured by an instrument which was absolute upon its face, but which the beneficiary contends to have been given only as security for a debt, the plaintiff has testified that the assignee admitted that he held the policy as security, and this evidence is corroborated by testimony of the assignee that he took the assignment “for whatever interest I had at the time,” there is a question for the jury, and a nonsuit is error.
    Although the plaintiff put the assignee ou the stand as a witness in his own behalf, and was not entitled to impeach him, it was not error to receive evidence of his admission.
    When the defendant puts in evidence a general release by the insured of any claims arising out of the insurance policy, it is error to-exclude evidence offered by the beneficiary tending to show that the insured was incompetent at the time of executing the release.
    Receipts and releases of all claims against the assignee executed by the insured do not affect the beneficiary’s right to recover the proceeds of ’such policy in excess of the debt owed by the insured to the assignee and the premiums paid by him.
    Appeal by tbe plaintiff, Ellen Gould, as executrix, etc,, of Libbie A. 'Werner, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in tbe office of the clerk of the county of Albany on tbe 15th day of January, 1906, upon the decision of tbe court rendered after a trial at the Albany Trial Term, tbe case not having been submitted to tbe jury, dismissing the complaint and adjudging tbe defendant Fisher to be tbe owner of a certain policy of life insurance, and also from an order entered in said clerk’s office on the 15th day of January, 1906, directing the entry of the aforesaid judgment.
    Tbe action is upon a policy of insurance issued by the defendant, The John Hancock Mutual Life Insurance Company, upon May 26, 1902, for the sum of §2,000, upon the life of one Elizabetli A. Phillips, who afterwards married one Werner and who was thereafter known as Libbie A. Werner, and was the plaintiff’s testatrix. The policy was made payable to her executors or administrators and contained a provision that the insured could change the beneficiary subject to the rights of any assignee of the policy. Libbie A. Werner died September 6, 1905. The defendant Samuel T. Fisher claims the entire amount of the policy under an assignment absolute upon its face executed by said Libbie A. Werner to him on the 28th day of May, 1902. The plaintiff claims as the executrix of said Libbie A. Werner to recover the entire amount of such policy except not to exceed the sum of $165 of indebtedness of said Libbie A. Werner to said Samuel T. Fisher, and the further amount of any moneys advanced by said Fisher for premiums on the policy. The defendant life insurance company is indifferent to the claims of the respective parties and has paid the amount of the policy into court and has been discharged from the action. The plaintiff claims and alleges that the said Libbie A. Werner also claimed in her lifetime that the assignment of the policy from her to Fisher was obtained by fraud as an assignment absolute on its face, and that the assignment was in fact intended only as security for her indebtedness to him and for any moneys that he might advance to her or for her benefit. At the close of the testimony in the case plaintiff’s complaint was dismissed, and from the judgment of dismissal plaintiff appeals.
    
      Nathaniel Niles and Robert W. Scott, for the appellant.
    
      Martin T. Nachtmann, for the respondent.
   Chester, J.:

We think the evidence presented a fair question for the determination of the jury in the first instance, and, therefore, that the learned trial court was in error in dismissing the complaint. While, the assignment of the policy in question was absolute on its face, yet one of the questions litigated was whether it was in fact given as security only. The plaintiff’s husband testified that the defendant Fisher came to his house in December, 1904, and there had a conversation with Mrs. Werner, and that in that conversation the witness heard Fisher say, with reference to the policy in question, “ that he held that policy for money that she owed him, between $150 and $160, and she claimed that she didn’t owe him any such amount. Well, he said he should hold that policy until he was paid what she owed him; after that he didn’t care what became of the policy after he got his money.” Ross, another witness for the plaintiff, testified in substance to the same effect. ' Fisher, it is true, denied these statements, but they had some corroboration in an expression used by him upon the examination of plaintiff’s counsel as to an interview between him and the insurance agent through whom the policy was issued, in response to a question as to the consideration of the assignment thereof, when he said that “ she (Mrs. Werner) owed me considerable money, and, of course, I took that (the policy) out at the time with the full understanding that it was my property and it passed to me as such for- whatever interest 1 had at the time.” With his evidence and these statements in the case, there was presented a clear question for the jury.

The respondent urges, however, that the plaintiff having put the. defendant Fisher upon the stand as a witness in support of her case, and he having testified that his interest in the policy was absolute, she could not thereafter impeach his testimony by showing that he had made admissions at another time tending to impair his credibility. Such admissions, it is true, could n.ot properly be received if the only purpose of receiving them was to impeach him, but that was not the only purpose, and they were competent evidence against him of the facts contained in such admissions. (Cross v. Cross, 108 N. Y. 628.)

The respondent put in evidence certain receipts and releases, signed by Mrs. Werner, of all claims against him, and also a general release in which she released him from any matter or alleged controversy growing out of any life insurance or policy, or.assignment thereof. The general release bears date the 12th day of June, 1905. ’The plaintiff offered testimony tending to show that at or about that date Mrs. Werner was incompetent by reason of the use of drugs and liquors to make such an instrument, and this evidence was excluded. The defendant having brought this release in as an element of his defense, it was properly the subject of attack by the plaintiff, and'she should .have been permitted to show, if she .could, that Mrs. Werner was incapable of making such a contract at the time she made it. It is not apparent how the other receipts and releases would affect the plaintiff’s right to recover the moneys payable. upon the policy over and above such amounts as the deceased owed to Fisher for moneys loaned and for premiums paid, in case the jury should find that the assignment was not absolute, but was for security only.

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

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  