
    Jacob Newman, Respondent, v. The John Hancock Mutual Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Insurance — Change of beneficiary — The consent of • the company is necessary — The furnishing of blanks does not constitute an estoppel.
    Eva Eell obtained two policies of insurance upon her life which designated her children as the beneficiaries and provided that she might change such beneficiaries “ with the consent of the company by written notice to said company ”. Thereafter she signed' papers requesting the insurance company to make one Newman the beneficiary under the policies and delivered said papers with the policies to Newman. Newman kept such policies in his safe until after the death of the insured without bringing them to the attention of the insurance company. After the attempted change of beneficiaries the insured paid the premiums herself and kept the premium receipt book, the production of which was a prerequisite to the insurance company’s liability to pay the amount of the policies. After the death of the insured Newman obtained the premium receipt book from one of the insured’s children;
    ' Held that Newman, having neglected to obtain the consent of the insurance company to his substitution as the beneficiary under the policies, could not maintain an action against the insurance company to recover the amount thereof;
    That the fact that an agent of Newman’s obtained at the office of the insurance company two blanks for the purpose of substituting Newman as beneficiary under the policies, and was told to have such policies filled out, did not create an estoppel against the insurance company.
    Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon a verdict directed by the court.
    Langbein & Langbein (Leonard J. Langbein, of counsel), for appellant.
    Steuer & Hoffman (Charles L. Hoffman and Henry A. Friedman, of counsel), for respondent.
   Freedman, P. J.

The real controversy in this case is not between plaintiff and defendant, but between the plaintiff and the .surviving children of the insured, for whose benefit the policy was taken out and whose battle the defendant is fighting. The defendant is not a mutual benefit association. Th'e defendant is a foreign corporation duly organized and existing as a life insurance company under the laws of the State of Massachusetts. By the two policies in question, it insured the life of Eva Fell in the amounts therein stated for the benefit of her children,' but the contract of insurance reserved to the insured the right to change the beneficiary “ with the consent of the company by written notice to said company.” The plaintiff claims to recover upon the policies as a subsequently designated beneficiary, and the material facts, briefly stated, were shown to be as follows: The insured signed papers requesting the defendant to make plaintiff the beneficiary under the policies because one of her children had died, and delivered said papers with the policies to him. The plaintiff placed them in his safe and then kept them until after the death of the insured. They were never shown to the defendant, nor filed with or delivered to it, nor was its consent requested before the death of the insured. The company knew nothing about them until after the death of the insured, and it never consented to the proposed change of beneficiary. The plaintiff did not pay a penny for the receipt of the papers, nor did he thereafter pay the premiums. The insured paid the premiums herself and kept the premium receipt book. This book by the terms of the insurance contract, was required to be produced before the company could be compelled to pay. The plaintiff did not get it until after the death of the insured and then he got it from the daughter. There was no assignment of the policies. If there had been, the policies by the very terms of the insurance contract would have become void unless the company consented to it. Upon these facts the plaintiff could not maintain the action upon the policies against the defendant, for as a condition precedent he was bound to obtain the consent of the company to his substitution as the beneficiary, and this he had not done. The precise point was involved in Canavan v. John Hancock Mutual Life Ins. Co., 39 Misc. Rep. 782, in which case plaintiffs right to recover was denied although he had paid premiums and presented a request to change, because he had failed to- protect his rights by seeing that the contemplated change was approved by the company. Eor the reasons there stated, there is no estoppel in the case at bar by reason of the fact that an agent of the plaintiff obtained at defendant’s office two blanks for the purpose of making the plaintiff the beneficiary under the policies and was told to have them filled out. Nor does the Insurance Law of this State (Laws of 1892, chap. 690, § 211), help the plaintiff, for while for the purpose of changing the original payee or beneficiary, it is not necessary to require his consent, the consent of the corporation is made indispensibly necessary. In Fink v. D. L. & W. Mutual Aid Society, 57 App. Div. 507, the decision proceeded upon the ground that under the constitution and by-laws of said ‘society, a member had an absolute right to change his beneficiary upon a mere request and the payment of a fee of twenty-five cents. The respondent cited a number of other cases, but on examination I found them inapplicable. The conclusion is, therefore, unavoidable that the direction of a verdict was erroneous.

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

Bischoff and Fitzgekald, JJ., concur.

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