
    William Jacobs, Judgment-Creditor, Respondent, v. Herman Strumwasser, Judgment-Debtor, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1914.)
    Insurance (life) — ordinary policy of — cannot be reached by creditors — change of beneficiary.
    Contempt — motion to punish judgment debtor for contempt — supplementary proceedings — change of beneficiary in life insurance policy without consent.
    An ordinary policy of insurance on the life of a husband for the benefit of his wife is her property and cannot be reached by his creditors.
    
      Where on motion to punish a judgment debtor for contempt in having violated an injunction contained in an order for his examination in proceedings supplementary to execution, it appears that he and his wife jointly applied for and received a loan on a policy of insurance on his life payable to her, with right in him to change the beneficiary without her consent, an order adjudging him in contempt will be reversed.
    Where both the judgment debtor and his wife make affidavit that when said policy of insurance was taken out it was assigned to her, and has ever since been in her possession, the transaction vested the whole property in the policy in the wife, and divested any right which her husband might have had by the terms of the policy to change the beneficiary.
    Appeal, from an order of the City Court of the city of New York, made in proceedings supplementary to execution, fining’ the judgment debtor in the sum of $260.12 for contempt of court in having violated an injunction contained in an order for his examination.
    Wesselman & Kraus (Bertram L. Kraus, of counsel), for appellant.
    Isadore Apfel (C. Bertram Plante, of counsel), for respondent.
   Page, J.

The judgment debtor testified upon his examination in supplementary proceedings that he was carrying a $10,000 life insurance policy with the Northwestern Insurance Company. In support of the motion to punish him for contempt was read the affidavit of the office superintendent of the New York agency of the said insurance company, which states that on May 20, 1913, the debtor and his wife, who was the beneficiary under the policy, jointly applied for and received a loan of $675 upon the policy, a check for which amount was sent to the debtor on May 22, 1913, payable to himself and beneficiary and that the policy in question was payable to the debtor’s wife, Jennie Strumwasser, with right to the insured to change the beneficiary without the beneficiary’s consent. In opposition to the motion were submitted the affidavits of the debtor and his wife, that when the policy was first issued in 1906 it was assigned, transferred and delivered to the beneficiary, the debtor’s wife, and has ever since been in her possession, and that the loan upon the policy was obtained for the debtor’s wife and she received all the proceeds thereof.

The principal question to be determined is whether or not the policy was the property of the debtor and hable for his debts. It is well established law that where a husband insures his life for the benefit of his wife by an ordinary life policy, the property in the policy vests at once in the beneficiary (Whitehead v. New York Life Ins. Co., 102 N. Y. 143), audit cannot be reached by creditors of the husband. Baron v. Brummer, 100 N. Y. 372; Dom. Rel. Law, § 52. Provided there are no specific provisions contained in the present policy to take it out of the operation of this rule, it is clear that the property upon which the debtor and his wife obtained the loan was exempt from execution and not within the terms of the injunction and no fine for contempt could be predicated upon the acts committed. It is claimed, however, upon authority of Matter of Wolff, 21 Am. Bank. Rep. 452, and Matter of White, 23 id. 90, that because the policy here in question contained a provision that the beneficiary could be changed by the insured without the consent of the present beneficiary, there was no vested interest in the wife and the policy was still within the debtor’s control and subject to his debts. Had there been any competent evidence before the learned justice at Special Term as to the terms of the policy and the existence of the debtor’s right to change the beneficiary at will, it might possibly have brought the case within the rules established by the cases relied upon, namely, that where the interest of the beneficiary is not vested the policy is not payable absolutely to the wife and is within the husband’s control and liable for his debts; but the policy has not been placed in evidence and no competent proof of its terms has been adduced. The only evidence of the terms of the policy is the statement contained in the affidavit of the insurance agent that “the policy in question is payable to Jennie, his wife, with right to change the beneficiary without said beneficiary’s consent.” This statement does not purport to be a quotation from the policy and is nothing more than a conclusion on the part of the deponent. It is impossible to determine from this evidence that the policy is not the usual one in which the right of the beneficiary is vested. For this reason I am constrained to hold that there was not sufficient competent evidence of the commission by the debtor of a violation of the injunction to sustain the order appealed from.

There is also another ground upon which the order must be reversed. Both the debtor and his wife have sworn to the fact that in 1906 the policy was transferred and delivered to the wife, who was the sole beneficiary, and has ever since been in her possession. This in itself vested the whole property in the policy in the donee and divested any right which the husband may have had by the terms of the policy to change the beneficiary. McGlynn v. Curry, 82 App. Div. 431. The property in question was, therefore, not property of the debtor and he was guilty of no contempt in joining with his wife in obtaining the loan for her benefit.

The order appealed from must be reversed, with ten dollars costs and disbursements to be applied upon the judgment.

Lehman and Bitur, JJ., concur.

Order reversed, with ten dollars costs and disbursements.  