
    Herbert A. Flynn, Administrator, etc., Appellant, v. The Prudential Life Insurance Company, with Raymond F. Dyer, Interpleaded, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    May, 1912.)
    Insurance — insurable interest — actions on policies — assignee of policy — administrator or executor of insured.
    .Where, in an administrator’s action to recover upon a policy on the life of his intestate, the testimony of an impleaded defendant as. to an assignment of the policy to him could have been excluded as incompetent under section 829 of the Code of Civil Procedure, and where there is corroborative evidence consistent with the theory that such policy was deposited with him as security for an indebtedness and further payment of premiums, and it also appears that the intestate on his death-bed believed that he still owned the policy, justice requires the reversal of a judgment in favor of the impleaded defendant, so that the plaintiff may recover the amount of the policy, the impleaded defendant present any proper claim, and the administrator pay the undertaker’s bill.
    Appeal from a judgment in favor of Dyer, the impleaded defendant, after trial of suit to recover the amount of á policy on the life of Edward Flynn, deceased, brother of plaintiff.
    O’bTeill & O’Eeill, for appellant.
    Samuel Roachford, for respondent.
   Per Curiam.

The evidence of an assignment of the policy very meagre. As far as defendant Dyer is concerned, it was brought out by cross-examination entirely, whereas, the administrator could have excluded it all by objecting under section 829 of the 'Code. The corroborating testimony of the witness Mapp is entirely consistent with the theory that deceased deposited the policy with Dyer as security for his indebtedness and for further payment of premiums, while the evidence of the witness Mrs. Eoss clearly shows that on his death-bed the deceased believed he still owned the policy. Therefore, while we are slow to interfere with a judgment on the ground that it is contrary to" the evidence, it would appear that justice requires a reversal of this .judgment to the end that the administrator may recover the amount of the policy, that Dyer may present whatever claim he has- for money loaned or premiums advanced and that the administrator may pay the undertaker’s bill.

Present: Kelly, Jaycox and Clark, JJ.

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