
    Orrigen B. Herrick, Respondent, v. Wilbert L. Smith et al., as Executors of Monroe C. Smith, Deceased, Appellants.
    
      Herrick v. Smith, 173 App. Div. 956, affirmed.
    (Argued June 5, 1918;
    decided June 14, 1918.)
    Appeal froto a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 21, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Monroe C. Smith, of the city of Syracuse, died on the 24th day of July, 1914, leaving a widow and two children, a son and a daughter, both of age. Among his effects in his safe was an insurance policy of $25,000, upon his fife in the JEtna Life Insurance Company. After his death the plaintiff, who was in no way related to him, claimed that Mr. Smith had in his lifetime made him a gift of this policy, and brought an action against the insurance company to recover thereupon as assignee. The executors of the deceased asserted their right to the policy as a part of his estate. The insurance company paid the proceeds of the policy into court, the executors were interpleaded in its place as defendants, and the action continued to determine the validity of the plaintiff’s claim. The answer and amended answer of the defendants put in issue the assignment in question, and challenged its validity .upon the ground of the mental condition of Mr. Smith at the time, and charged that it was the product of fraud and undue influence practiced upon and exercised over the decedent.
    
      William Nottingham, William A. Mackenzie and L. P. Smith for appellants'.
    
      A. H. Come for respondent.
   Judgment affirmed, .with costs; no opinion.

Concur: Chase, Collin, Cuddeback, Hogan and Cardozo, JJ. Dissenting: McLaughlin, J. Not voting: His cock, Ch. J.  