
    Stephen B. M. Stokes, as Trustee, Resp’t, v. Richard Amerman et al., Impleaded, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Creditor’s action—Excess or premiums—Laws 1840, chap. 80.
    An action by a judgment creditor to reach excess of premiums paid by the debtor on a policy on his life payable to his wife may be brought while both the debtor and his wife are living.
    
      Appeal from interlocutory judgment overruling demurrers to the complaint.
    The material allegations of the complaint are as follows: That in a special proceeding in this court an order was entered upon March 17,1873, directing Richard Amerman to pay to Charles W. Stokes and Sarah P. Powell, as trustees, for the benefit of Mary A. Hewitt, under the last will and testament of Caroline L. Stokes, deceased, the sum of $4,287.58, with interest and costs; that prior to August 18,1881, Charles W. Stokes died, and Sarah P. Powell resigned as trustee, and that upon said August 18, 1881, plaintiff was appointed and has since been the sole trustee of said trust; that on said order, entered March 17, 1873, judgment was entered on November 5, 1886, in favor of said Charles W. Stokes and Sarah P. Powell, as trustees, against Richard Amerman for $4,-537.58, and interest; that execution has been issued to the proper county and returned unsatisfied.
    That in the year 1871 the defendant insurance company issued its policies whereby it insured the life of the defendant, Richard Amerman, in the sum of $20,000, payable on his death to the defendant, his wife, for her use, if she should survive him, in conformity with the statute; if she should not survive him to his children or their guardian for their use; or, if no wife or children should survive him, then to his personal representatives. That the policy is referred to for proof of matters therein contained. That the wife, by herself and in her name caused the life 'of her husband to be so insured; but that the policy was issued on the application of the husband acting in her behalf. That on the issuance of the policy and at the expiration of each premium-period thereafter the husband paid, out of his property or funds, a premium exceeding $250, in the case of each half-yearly premium-period ; and exceeding $500 in the case of each yearly premium-period. That at the time of the issuance of the policy the husband was insolvent and indebted to the estate as trustee of which the plaintiff sues; and that he was so insolvent and indebted at the time of payment of each of the premiums on the policy. That the defendant, Y7alker, is the only child of the defendant, Richard Amerman.-
    It prayed for a decree that the excessive premiums and interest thereon are not exempt from claims of Richard Amerman’s creditors, but inured to plaintiff’s benefit; that plaintiff’s interest in the policy he ascertained; that plaintiff have a lien thereon to the extent of such interest, and that defendants be enjoined from interfering with it.
    Defendants demurred on the grounds that the complaint did not state facts sufficient to constitute a cause of action, and claim that plaintiff is not a judgment creditor; that the action could not be maintained during the lifetime of the husband.
    
      David Willcox and L. M Opdycke, for app’lts; Stephen B. M. Stokes, for resp’t.
   Barnard, P. J.

The complaint states facts which make a good cause of action. The plaintiff is now the sole trustee under the last will and testament of Caroline L. Stokes, deceased. The defendant, Richard Amerman, was once one of the trustees under that will, hut for waste of the funds was permitted to resign, and the remaining trustees recovered a judgment against him for the amount of such waste and misappropriation of the trust funds.

This judgment was recovered on the 5th of November, 1886, and filed on the same day in the clerk’s office of the city of New York. Execution was at once issued, but was returned unsatisfied. The amount of the judgment was $4,537.58, with interest from February 1, 1873.

The plaintiff was appointed sole trustee in 1881, and not only took the trust estate by force of the appointment, but took an assignment of the estate from the old trustee.

The plaintiff has the legal title to the judgment, with power to sue upon it in his own name as trustee, and this makes him a judgment creditor of the defendant in legal signification. In 1871 the defendant, Eleanor Amerman, caused her husband, the judgment debtor, to be insured in the Equitable Life Insurance Society for $20,000, for her benefit, if she survived her husband. The application was made by the debtor, and he has paid out of his property and funds over $500 in yearly premium for each year. The husband and wife are still living. It is not necessary that the husband be dead, and that the wife survive, to give the creditor a right of action for the excess. The-debtor’s money has been put into the policy. Chapter 80 of Laws of 1840, and the amendatory acts,-187, Laws of 1858, 277, Laws of 1870, make the loss payable to the wife, free of creditor’s claims, in case she survives her husband. Then follow the words which permit this action: “But when the premium paid in any year out of the property or funds of the husband shall exceed $500, such exemption from such claims shall not apply to so much of said premium so paid as shall be in excess of $500, but such excess, with the interest thereon, shall inure to the benefit of his creditors.” Under this law the premium paid would all be subject to claim of creditors. The law only exempts $500 of yearly premium. In Baron v. Brummer, 100 N. Y., 372, which was a precisely similar action to this one, the court of appeals held that payments in excess of $500 could not be reached by a creditor whose debt was contracted after the payment of the premiums sought to be reached. The court apparently saw no objection to the action itself being brought while both husband and wife are living. Assuming a right of action, it is immaterial to discuss objections which go-merely to the form of the decree.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.  