
    John Bohleber, Resp’t, v. August Waelden et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Contract—Cancbi/lation—Breach.
    An assignment of a policy of insurance in consideration of keeping the insured from want and distress, will not be cancelled for a failure of tbe assignee to perform bis part of tbe contract.
    Appeal from a judgment in favor of plaintiff.
    
      S. T. Maddox, for app’lts; F. Salinger, for resp’t.
   Brown, J.

This case has been before this court on a prior appeal by defendants from a dismissal of the complaint. 69 Hun, 79; 52 St. Rep. 605. It was then assumed that the assignment to Schmidt was made upon his promise to pay the premiums and keep the policy alive, and that it was qualified by the words “as interest may appear." Under those facts it was held that plaintiff was entitled to an accounting, and to a reassignment upon payment of what was due. The case now before us, as made by the pleadings, evidence and findings, is very different from that stated in the opinion of Justice Barnard, and we feel at liberty to consider it disembarrassed from the former decision. It appeared that in August, 1877, the Equitable Life Assurance Society, in consideration of $17.91, payable by Maria Bohleber, plaintiff’s wife, and of quarterly premiums to be paid during the continuance oí the policy, issued its policy of insurance on the plaintiff’s life, payable “ to his said wife, for her sole use, if living, in conformity with the statute, and, if not living, to the children of said John Bohleber, or their guardian for their use, or, if there be no such children or wife surviving, then to the executors, administrators or assigns of said John.” On December 14, 1889, said Maria Bohleber and John Bohleber executed and delivered an assignment of said policy to the appellant Charles Schmidt “ as .interest may appear.” On March 28th, Schmidt executed and delivered to the appellant Waeldcn an assignment of said policy absolute in form. The court found that no fraud or mutual mistake was proven against the defendants, or either of them, upon obtaining the assignment to Schmidt. The plaintiff’s wife died in April, 1890, and no children survived her. The complaint alleged, and the court found, that the assignment to Schmidt was made on his promise to pay the premiums and “ keep the plaintiff and his wife from want and from distress caused by lack of funds or sickness; ” and that in September, 1890, said defendant refused to render assistance to the plaintiff, although he was then in want and distress, and thereafter failed to support him. I can find no evidence in the case that Schmidt ever refused to support the plaintiff. All that the plaintiff testified to on his direct examination was that Schmidt lived on Marcy avenue, and moved from there to the country in December, 1890, and that he did not move with him because Schmidt did not take him with him. Being recalled in rebuttal, he said : “ I did nothing about going with Schmidt when he moved from Marcy avenue to the country. I did not move with him. He didn’t say anything to me. On the contrary, I helped him move out for a whole week, and I supposed when he got settled there and in order he would take me out with him. He never offered to take me. Q. Did you ever offer to go with him?. A. No, I did not. I have thought he would send his son for me, and take me. I was living in a hall room at the time, for which I paid three dollars per month.” Upon the plaintiff’s theory of the case, therefore, he failed, as he certainly could not be entitled to the relief he seeks until the defendant was in default by a refusal to perform his contract. But, independent of this finding, this action cannot be sustained without disregarding well settled rules of law. We may assume, for the purpose of this appeal, without deciding it, that under the condition of the policy relating to payment the plaintiff, by the death of his wife and children, acquired a vested interest therein, which entitled him to maintain an action for its protection. But the rule is well settled that the jurisdiction of a court of equity to cancel an instrument is exercised only upon allegation and proof of fraud or mistake. Wilson v. Deen. 74 N. Y. 531-585; Herrick v. Starkweather, 54 Hun, 532; 28 St. Rep. 364. No such allegations are made in the complaint, and no evidence thereof was given upon the trial, and the court distinctly found that the assignment to Schmidt was not the product of any fraud or mistake. The charge is that the defendant Schmidt failed to keep and perform the contract which was the consideration of the assignment. By the very terms of the agreement its performance by Schmidt was to begin after the execution and delivery of the assignment, and the omission to perform it cannot be made the ground for setting aside the assignment. It may afford a basis for an equitable action for specific performance, or a legal action for damages, but not to annul the instrument of which it was made the consideration. The expression, “as interest may appear,'’ contained in the assignment, adds nothing to the plaintiff’s case. There was no indebtedness to Schmidt from plaintiff or his wife, and the words quoted appear to be without meaning in the contract actually proven. Schmidt had no interest in the policy except such as he acquired by the assignment. It was not given as security, but as a consideration for his agreement to support the assignors. Under settled rules of law the title to the policy, subject to the conditions therein stated, upon the delivery of the assignment vested in Schmidt, and upon the death of plaintiff’s wife became absolute. He could sell it, and transfer a good title; and bis assignment to Waelden was not subject to any equities in the plaintiff.

For these reasons the judgment must be reversed, and a new trial granted; costs to abide the event.

All concur.  