
    (72 Hun, 194.)
    KILLORAN v. SWEET.
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    Life Insurance—Assignment of Policy—Failure to Pay Premiums.
    Where a life insurance policy is assigned to secure the assignee against a contingent liability dependent on the life of the assured, and such assignee is paid by a third person a sum sufficient to pay the premiums while such contingency exists, but he does not agree to pay them, he is not liable in damages to the. assured’s estate for permitting the policy to lapse by failure to apply the money received to the payment of such premiums.
    Appeal from circuit court, Hew York county.
    Action by Mary J. Killoran, as administratrix of the estate of John H. E. Killoran, deceased, against Clinton W. Sweet, to recover damages caused by defendant in permitting a policy of insurance on the life of deceased, which was assigned to defendant, to lapse. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Henry A. Forster, for appellant.
    Edward Jacobs, for respondent.
   FOLLETT, J.

In October, 1869, Margaret Killoran died, leaving a will, which was duly probated, by which she devised the fee of No. 350 Sixth avenue to Dominick J. Killoran, her son, subject to a charge of $4,500, payable to John H. E. Killoran, another son, in installments of $250 on each 1st day of May beginning May 1, 1870, and ending May 1, 1887. It was provided that, in case said annuitant died before' the whole sum should be paid, the subse- ■ quent annual payments were to be paid to persons mentioned in the will. Dominick J. Killoran paid to his brother $250 annually for 8 years,—$2,000 in all,—the last payment being made May 1, 1877. This left a charge of $2,500 on the premises, payable in 10 annual installments on each 1st day of May thereafter. On the 22d of November, 1877, Dominick J. Killoran conveyed the premises to the defendant in this action by a full covenant deed, and at the same time John H. E. Killoran acknowledged the receipt of all previous annual payments due him, and conveyed all of his interest in the premises to the defendant; and for the purpose of securing the defendant against the liability of paying annual sums to other persons in case John H. E. Killoran died before the expiration of the 10 years within which the remaining $2,500 were to be paid, Dominick J. Killoran procured a policy of insurance for $2,500 on the life of John H. E. Killoran, payable to his representatives or assigns. It bore date November 20, 1877, and the annual premium thereon was $56.75, amounting for 10 years to $567.50, Avhich sum Dominick J. Killoran delivered to the defendant, whereAvith to pay the premiums on the policy for 10 years. On the day the policy was issued it was assigned by John H. E. Killoran to the defendant. July 16, 1886, John H. E. Killoran died of delirium tremens at BelleATie Hospital in the city of New York. Subsequently letters of administration were granted to his widow, who brings this - action to" recover damages against the defendant for permitting the policy to lapse. She claims that she is entitled to recover $2,872, the amount which would have been due on the policy had all the premiums been paid and all of the conditions of the policy kept and performed. The defendant answered that the policy was solely for his indemnity and benefit, and that he stopped paying the premiums because the insured violated the terms - of the policy by impairing his health by the use of alcoholic stimulants, and by traveling and residing outside of the limits of residence and travel permitted by the terms of the policy. To establish the liability of the defendant for damages arising from his failure to pay the annual premiums it was necessary for the plaintiff to show that the defendant Avas under some obligation to make the payments. This was the issue which she tendered in her complaint, and which she was bound to establish in order-recover. The defendant introduced no evidence, and the case was disposed of on that given by and in behalf of the plaintiff. She called the defendant, and he was examined in respect to the terms of the agreement under which the policy was assigned to and the money left with him for the payment of future premiums. He testified that he nevrer promised to keep the policy alive, and that it was issued and assigned to him solely for his security. There is nothing in the case impeaching or discrediting this testimony; indeed, the natural inference deducible from all the evidence is that this policy was taken out and paid for by Dominick J. Killoran and assigned by John H. E. Killoran to the defendant solely for the latter’s security against any claims that might be made by others for the payment of the sum charged on the land.

There is not the slightest conflict in the evidence, and there was no disputed question of fact, and no question for the jury. The defendant had in his hands $283.75 of the money delivered to him by Dominick J. Killoran which he had not expended in paying premiums on the policy, for which amount he consented that a verdict might be directed against him, with interest. Under the complaint the plaintiff was not entitled to recover this sum in this action, but the defendant, in his answer, averred that he agreed with Dominick J. Killoran to pay to the plaintiff such part of $567.50 as he should not expend in the payment of premiums on the policy. When John H. E. Killoran died there was but one annual payment of $250 left as a charge on the land, which the defendant has satisfied. It seems to us that the bare statement of the facts of this case demonstrates without the aid of argument and illustration that the plaintiff is not entitled to recover. The vital allegation in her complaint is “that said defendant agreed out of said moneys to keep said policy alive by paying premiums thereon which should become due, including the premium which should become due on the 20t.h day of November, 1886.” This allegation she not only failed to prove, but absolutely disproved it by her own witness. The judgment is right, and must be affirmed, with • costs. All concur.  