
    Agnes King, Resp’t, v. George H. Van Vleck, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 24, 1888.)
    
    1. Insurance (life)—Policy—Mortgage—Right to redeem—How cut OFF.
    One King procured a policy of insurance upon Ms life for $2,000, payaMe upon the occurrence of Ms death to his executors. He mortgaged the policy to the defendant, to secure payment of $500 and interest in one year. King died, leaving a will, by wMch he bequeathed to the plaintiff and others certain interests in the life insurance. The policy remained in force at King’s death, and the $500 for which the defendant held the policy as security had not been paid, although long past due. Held, that the right to redeem the policy could he cut off by the mortgage only by taking some proceedings adequate in law for that purpose.
    2. Same—Right of person to whom policy payable.
    No such proceedings were taken by defendant. He received from the insurance company the amount due under the policy. The plaintiff succeeded to all the rights of the mortgagor. Held, that plaintiff had the right to claim from the defendant the balance of the amount realized on . the policy, after deducting the debt and interest, together with the premiums and expenses which he had paid.
    3. Same—Pleading—Form of action.
    The action was for money had and received. Held, that it was the proper form of action.
    4. Practice — Trial—Exception to form of action — When too late.
    It is too late at the close of plaintiff’s case for the defendant to interpose, for the first time, the objection that the action should have been tried as one in equity and not at law.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment in favor of the plaintiff, entered upon a verdict rendered at the Erie circuit.
    
      Williams & Potter, for app’lt; Geo. M. Osgoodby, for resp’t.
    
      
       Affirming 40 Hun, 68.
    
   Earl, J.

—The material facts as established by the evidence in this action are as follows: On the 13th day of August, 1868, Sidney B. Bang, procured from the Connecticut Life Insurance Company a policy of insurance upon his life for $2,000, payable upon the occurrence of his death to his executors or administrators. On the 18th day of March, 1879, King mortgaged the policy to the defendant to secure the payment of $500 and interest in one year from the date of the mortgage. Bang died on the 22d of October, 1882, leaving a will by which he bequeathed to the plaintiff, his wife, and to his mother each a one-fourth interest in the life policy; and the other half of the policy he bequeathed to one Kent, whom he appointed executor of his will. The policy remained in force at his death, and the $500, for which the defendant held the policy as security, had not been paid. Proper proofs were furnished to the insurance company of the death of King, and on the 27th day of February, 1883, it gave its draft for the sum due on the policy, to wit: $1,939.43, payable to the order of Kent as executor and the defendant as assignee. That draft was indorsed by the payees named therein, and the amount thereof was paid to the defendant. The executor and the mother of King assigned their interest in the policy and the money paid thereon to the plaintiff. She then demanded the money, or some portion thereof from the defendant, and he declined to pay her any of it. She then commenced this action, in which, among other things, she alleged that the indebtedness from her husband to the defendant, which had been secured by the assignment of the policy, was paid in the lifetime of her husband, and she claimed from the defendant the sum of $2,000, alleged to have been received by him from the insurance company, and demanded judgment for that sum with interest and costs.

The defendant in his answer admitted that the policy was delivered to him as collateral security for the payment of $500, and interest; and that he had received from the insurance company, in payment and discharge of the policy, the sum of $1,939.43, and he alleged that before the death of King in consideration of the sum of forty-five dollars, paid by" him, King waived, released and abandoned to him all his right, title and interest in and to the policy of insurance, and to all sums that might be realized thereon; and that thereby he, the defendant, became the absolute owner of the policy. He also alleged that he had paid for premiums upon the policy $74.41, and $250, expenses of procuring payment upon the policy from the insurance company.

Upon the trial of the action no evidence whatever was given showing that the testator in consideration of the sum of forty-five dollars, or any other sum had released or assigned his interest in the policy to the defendant. The case was submitted to the jury and they rendered a verdict in favor of the plaintiff for $1,270.10, thus showing that they allowed to the defendant the indebtedness of $500, and interest thereon and in the neighborhood of $200 besides.

Upon the undisputed facts it is very obvious that the plaintiff was entitled to recover. By the money received from the insurance company the debt of King was fully paid and satisfied, and thereafter the defendant had no right whatever to retain any of the balance except what he had paid for premiums and his expenses. By the default of King to make payment of his indebtedness, the title of the defendant to the policy of insurance did not become absolute. While in a technical sense the legal title became then absolutely vested in the defendant, it was subject to the right of redemption on the part of King, and that right of redemption could be cut off by the mortgagee only by taking some proceedings adequate in law for that purpose. Wo such proceedings were taken by him, and the plaintiff who had succeeded to all the rights of the mortgagor and stood in his place had the right to claim from the defendant the balance of the amount realized on the policy after deducting the debt and interest together with the premiums and expenses which he had paid. The mortgage must be deemed to have been paid by the money received by the defendant upon the policy, and he held the balance for the plaintiff and became indebted to her therefor.

To hold that a technical action to redeem? was necessary in such a case would be to sacrifice substance to form under a system of pleadings where mere forms count for but little. The facts set forth in the complaint show that the plaintiff was entitled to the relief she claimed. The action is substantially for money had and received; and it is impossible to perceive why that was not a proper action. Cope v. Wheeler, 41 N. Y., 303. The precise relief to which the plaintiff was entitled, was the balance of money due her, and she was entitled to no other relief, and needed no other. That balance was easily ascertainable, and the peculiar machinery of an equity court was not needed to ascertain it.

The cause proceeded to trial at a circuit court before a jury without any objection whatever. At the close of plaintiff’s case, defendant’s counsel moved for a non-suit upon the following grounds: First, that the plaintiff had not established any legal cause of action; also, second, that the plaintiff had failed to establish any cause of action; and third, on the ground that if the plaintiff has introduced any proof establishing, or tending to establish, any cause of action, it. is an equitable one, and she is entitled to relief in equity and not at law. That no issues have been framed or settled herein, and there can be no submission to the jury of any question of fact.

The court denied the motion, and very properly. It was too late, at that stage of the case, for the defendant to interpose an objection that the action should have been tried as one in equity, and not at law, But further, as the complaint demanded a judgment for money only, the case was properly triable before a jury. Code § 968.

According to the evidence the jury, by their verdict, seem to have done precise justice between the parties, and the judgment entered thereon should not be disturbed. The very able and satisfactory opinion delivered at the general term, renders it unnecessary that more should be written now.

The judgment should be affirmed, with costs.

All concur.  