
    Charles Helfrich, Resp’t, v. The John Hancock Mutual Life Insurance Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Appeal—First instance.
    A claim, not made upon the trial, cannot be asserted upon appeal.
    
      8. Insurance—Mutual—Change of beneficiary.
    Where a wife insures her life in favor of her husband, and subsequently applies for a change of beneficiary, upon the condition that her husband “does not claim,” to which the company assents, no change is effected in the absence of proof that he has released his claim, or that he is dead, or that his claim has been barred by the statute of limitations.
    Appeal by the defendant from a judgment of the district court in the city of New York for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. The nature of the action and the material facts are stated in the opinion.
    
      Leonard J. Langbien, for app’It; Joseph Steiner, for resp’t.
   Giegerich, J.

This action was brought upon a policy of insurance, taken out by one Katherina Maierhofer upon her own life, in favor of her husband, for the sum of $100, payable at her death. The answer was a general denial, that plaintiff was not the real party in interest, and that the title of the plaintiff to the policy was void under the statute against the wagering of policies of insurance. The facts appearing from the evidence are, that the insured, wishing to change the beneficiary under the policy in suit, applied to the agent who collected the premiums, telling him to have the change made. That the agent advised her that no such change could be made unless she obtained a release from her husband. Thereupon she told him she did not know exactly where her husband was at that time. It then appears that the agent filled out the ordinary application for the change of a beneficiary in favor of the plaintiff, absolutely; but the company refused to accept it. Another application was then made out at the office of the defendant, and was left with the insured to be signed. After keeping it two weeks, she signed it on October 31st, 1892, and delivered it to the agent.

This application contains the following request, addressed to the defendant company: “ Please make policy Ho. 337,355, B, on my life for the benefit of Charles Helfrich, my friend, * * * provided my husband does not claim.”

Plaintiff’s counsel, in his brief, claims that this instrument has been tampered with. Ho such claim was made upon the trial and cannot, therefore, be asserted upon appeal. On the 18th day of Hovember, 1892, an assistant superintendent of the defendant wrote the following postal card to the insured, viz.:

“New York Branch
“John Hancock Mutual Life Insurance Company,
“of Boston, Mass.,
“28 Union Square, New York, “Nov. 18, 1892.
“ Mrs. Catherine Maierhofer :
“ Dear Madam—The beneficiary of your policy has been changed over to Charles Helfrich. Please pay collector when he calls next week and oblige.
‘1 (Signed) J/ W oodruff,
“Ass't Supt., 28 Union Square, N. 7.”

The respondent claims that this-operated as a change of beneficiary. Even if we concede, for argument’s sake, that the husband’s interest in the policy is not irrevocable, and that Wood-ruff was authorized by the company to change the beneficiary (which is disputed by the defendant), still the statement of Wood-ruff that the beneficiary had been changed must be read in connectiofi with the application for such change, which was expressly made subject to the rights of the husband, and which, in effect, was: If he “ does not claim,” then the plaintiff is to be beneficiary. As it has not been shown that the husband has released his claim, or that he is dead, or that his claim had been barred by the statute of limitations, the plaintiff, even under this view of the case, has whollysfailed to establish any title to the subject matter of the action. The motion to dismiss the complaint made by the defendant when the plaintiff rested and renewed at the close of the case, should, therefore, have been granted.

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

Bischoff, P. J., concurs.  