
    Katherine B. Howe, Respondent, v. Caroline S. Hagan, Individually, and as Administratrix, etc., of Peter M. Sillcock, Deceased, and Others, Appellants.
    First Department,
    December 30, 1905.
    Pleading — under answer alleging assignment, assignment as security may be shown — when delivery of assignment immaterial — promise to marry no consideration when promisor is married — evidence.
    When, in an action to recover .the amount of insurance policies, the answer alleges that prior to the assignment of the policies to the plaintiff they had been assigned to the defendants, the defendants are entitled to- show that their assignment was made as collateral security for a loan' which had not been paid. Under such allegation the defendants are not required to prove an absolute assignment, but any assignment to them which will defeat-' plaintiff’s claim.
    When the plaintiff has paid nothing for her assignment, the only considera: . tion. being that she had agreed, to become the wife o'f the assignor, the fact that the deceased did not deliver the assignment of the policies to the defendants is immaterial if the defendants have paid the consideration relying on their assignor’s promise to deliver the assignment. Such assignment is good as against every one except a purchaser in good faith for value.
    When the alleged consideration for the assignment to the plaintiff was her promise to marry the insured/ it is error to exclude evidence that at the time she was already married, for in süch case the promise was no consideration for the assignment. •' . .,
    Pleadings are to be liberally construed and that will be deemed to be alleged which by fair intendment can be implied.
    Appeal by the defendants, Caroline' S. Hagan, individually, and' as administratrix, etc., of Peter M. Sillcock, deceased, and others,from a judgment; of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the’ 17th day of January, 1905, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Frank Brundage, for the appellants.
    
      John J. Adams, for the respondent.
   Houghton, J.:

Petér M. Sillcock died leaving three policies of insurance upon his life’, aggregating $15,000, issued by the. Equitable: Life Assurance Society of the United States. Prior to .his death he had pledged them, to the Equitable Trust Company as collateral security for a loan of $2,400.

Upon his death the plaintiff, claiming to be the owner of such policies, brought an action against the insurance company to recover their amount. . The defendants also made claim on such policies individually, and "the defendant Hagan, as administratrix of the deceased, and the insurance company was permitted by order to make deposit of the moneys, less the sum due to the Equitable Trust Company upon its loan, and these defendants to intervene to the end that the respective claims of the parties hereto might be" determined. Plaintiff then served .an amended complaint, which alleged that she was entitled to all of such moneys under an assignment from Sillcock to her. And the defendants by their answer alleged, That prior to any assignment of the policies * * * mentioned and set forth in the said complaint and therein alleged to be assigned to the said plaintiff, the said Peter M. Sillcock duly assigned said policies to these defendants, Caroline S. Hagan, Susan M. Chase and John J. Sillcock who became entitled thereto,” and denied any knowledge or information sufficient to form a belief as to the validity of the assignment under which the plaintiff .claimed. There was. also alleged the insolvency of Peter M. Sillcock at the time of his death.

Upon the issues thus formed the parties went to trial, on which the plaintiff, to establish her cause of action, introduced in evidence an assignment to her of the policies in question, written upon the back of a letter dated January 9, 1902, to Sillcock from the American Deposit and Loan Company (which subsequently became the Equitable,Trust Company) which described the policiés as having been pledged as collateral security for the payment of the loan of $2,400..- The assignment, which was undated, read as follows: “ I assign all right and title to the policies mentioned on the reverse side of this receipt to my affianced wife, Katherine B. Howe.” (Signed.) She also introduced in evidence a statement written by the deceased, declaring that he had assigned the policies to her, and had pledged them with her consent to secure' such loan. Ho proof was offered nor was any claim made that there was any consideration for this assignment other than that the plaintiff, at the time it was made, was the affianced wife of the' deceased.

The.defendants, to support the allegations of their answer, introduced in evidence a copy of an assignment, the original having been lost, reading as follows:

“Dec, 12, 1899.
“ In consideration of the loans of bonds, stocks, <fec., to enable me to make loans of cash money, I assign as additional security, all rights, after payment has been made of any money that may be borrowed against same, my several life insurance (policies), i. e., (then follows a list of insurance policies, including those in question) to John J. Sillcock, Carrie Hagan, Susan Chase, for their protection against such loans,
[$26 in rev. stamps.] . “ P. M. SILLCOCK.”-'

This proof was supplemented by other proof which tended to show that the defendants had actually delivered prior to the date of the assignment, to the deceased, bonds arid securities of the aggregate value of upwards of $20,000, and that at the time of his death he had not paid or accounted to the defendants for their value.

The trial court in disposing of the issues, as he states in his opinion, did not consider this assignment or these proofs for the reason that they tended to establish that the policies were assigned as collateral security, while the allegation of the answer was that’ the assignment was absolute, and that, the proof having failed to establish an absolute assignment, defendants were “ out of court.”

i We think the court erred in this view. The answer did not necessarily allege an absolute assignment. Its allegations were that prior to the assignment to the plaintiff the policies in question had been assigned -to the defendants, an;d under this allegation defendants were entitled to prove any assignment which would defeat the plaintiff’s claim. If this allegation was not sufficiently definite to satisfy the plaintiff, she should have moved in advance of the trial that the defendants make it more definite and certain. Hot having done so, she was not in a position to assert that the, defendants could not establish any assignment except an absolute one, ■

Pleadings are to be liberally construed with a view of doing substantial justice between the parties. (Code Civ. Proc. § 519'; National Contracting Co. v. Hudson R. W. P. Co., 170 N. Y. 443.) Definiteness is not a necessity to á good averment, for that will be deemed to be alleged which can by reasonable and fair intendment be implied from the allegation. (Kain v. Larkin, 141 N. Y. 144; Marie v. Garrison, 83 id. 14.) A mere plea of the fact of assignment of a chose in action, or the making of a contract of guaranty, does not necessarily characterize it as,absolute or as security, or original, or collateral. (Ward v. Hasbrouck, 169 N. Y. 407, affg. 52 App. Div. 627.)

The issue involved was as to which party was entitled to the proceeds of these policies, both claiming by assignment. Defendants proved an assignment prior in point of time to that of the plaintiff, and they cannot be deprived of what that assignment gave them because they.had not specifically described it in their answer as one given for collateral security. The law does not require such a strict and harsh rule of pleading. It must be borne in mind that the plaintiff had paid nothing for her assignment. There was no consideration for it other than she had agreed ■ to become the wife of the person making it, which would furnish a good consideration except as against prior creditors or an assignee for value. If the defendants’ proof is to be credited, then they hold a prior assignment of those policies for which they had paid a valuable consideration by the delivery to the deceased of bonds and securities which he had absorbed by pledging them as collateral for loans to himself.

The fact that the deceased had not prior to his death delivered the assignment of the policies ,to the defendants, is of no importance if the other facts were found upon which their right to the assignment depended. If they had in fact paid the consideration relying -upon the deceased’s promise that he would assign the policies to them as collateral security, arid lie had done so but had not actually delivered it, such assignment would be good as against every one except a purchaser in good faith for value. (Marie v. Garrison, supra ; Smith v. Smith, 125 N. Y. 224 ; Sprague v. Cochran, 144 id. 104 ; National Bank of Deposit v. Rogers, 166 id. 390 ; Schermerhorn v. Gardenier, 107 App. Div. 564.) ' The trial court should, therefore, have considered the evidence bearing upon the defendants’ claim, and his failure to do so was error which calls -for a new trial.

We are also of the opinion that error was committed in sustaining objections to questions put to plaintiff on cross-examination, and in excluding letters written by her tending to show that at the time the assignment was made to her she was á married woman. If she were in fact a married woman, she could not have agreed to become ■the wife, of the deceased, and her promise tó do so did not furnish any consideration for the .assignment to her. The defendants ‘ had the right to attack the Consideration for the plaintiff’s assignment by showing, if they could, and by herself, if they might, that she was married,, and that in fact there was no' valid betrothal between the deceased and her. Because of the theory upon- which the case was tried, and for the errors in.the exclusion of evidence which we have pointed out,' we aré of the opinion that justice demands there should be a new trial.

The judgment is reversed and a.new trial granted, with costs- to appellants to abide the event; .

O’Brien, P. J., McLaughlin and Clarke, jj., concurred; Ingraham, J., concurred in result.

Judgment reversed, new trial granted, costs to appellants to abide e event. -  