
    ROSA De JONGE, Appellant, v. PAULINE GOLDSMITH, Respondent.
    
      IAfe insurance—endowment policy payable to-.wife not assignable—Evidence.
    
    A policy of insurance payable to the wife upon the death of her hus- ' band, or upon a certain date, should he then be living, is not assignable by the wife. A guaranty by the wife of the “sufficiency and validity of the assignment” does not.give validity thereto; nor does the assignee acquire any interest in the policy by subsequent payment of premiums in good faith. His rights are limited to the recovery of the amount so paid by him.
    The presumption that such a policy was issued for the purposes declared in the act of 1840, is not destroyed by proof of a former assignment by the wife for the husband’s benefit. Whether such evidence is admissible for that purpose, qumre.
    
    Before Sedgwick and Freedman, JJ.
    
      Decided April 5, 1880.
    
      Appeal by plaintiff from judgment.
    The action was begun by the plaintiff against The Mutual Life Insurance Company, to recover the amount of a policy of insurance upon the life of Henry Goldsmith, for the benefit of his wife, Pauline Gold smith, the present defendant, and assigned by her to the plaintiff. The insurance company was allowed by order to substitute the present defendant in its place, having deposited in court the amount due upon the policy.
    The policy was payable to the wife, on the death of her husband, or if he should be living on November 1, 1880, then, on that day. The husband died in 1877. Before his death, his wife assigned the policy to the plaintiff, by an instrument in writing which guaranteed “the validity and sufficiency of the foregoing assignment to the above named assignee.” The assignee paid four quarterly premiums, before the death of Mr. Goldsmith.
    The court held that the assignment was void, for want of power of the wife to assign, and adjudged that the defendant was entitled to the fund in court, excepting an amount equal to the premiums paid by the plaintiff, which amount was adjudged to be paid to the plaintiff.
    
      James K. Hill, attorney, and J. A. Shoudy, of counsel, for appellant.
    
      Eli M. Cohen, attorney, and Otto Horwitz, of counsel, for respondent.
   By the Court.—Sedgwick, J.

Brummer v. Cohen, decided by the general term of the New York common pleas (58 How. Pr. 239), the discussion in the opinion of Jndge Larremore in that case at general term, and of Judge J. F. Daly at special term, and the cases cited by those judges, require that there should be an affirmance of the position taken below, that the assignment of the defendant to plaintiff was void. The interest of the wife is non-assignable, on the ground that the intent of the statute would be defeated, if such a policy were held to be assignable (Eadie v. Slimmon, 26 N. Y. 15).

It is then further to be observed that the guaranty by a wife, of the validity of such an assignment, must partake of the fundamental objection to the assignment itself. If the guaranty be valid, the law would not declare the assignment invalid. A promise to make the assignment valid and sufficient has not as much strength as actually assigning.

The learned counsel for appellant argues that, the payment of premiums by plain tiff in her own right, and while claiming to be the owner of the policy, cannot inure to the benefit of the defendant. ‘1 Whether or not the policy that is attempted to be assigned is or shall be kept alive, so far as the payment of premiums affects this question, depends upon the position that the company may take. The assignee pays the premium from time to time. If it be assumed that the assignee does not, by legal construction, act for the real owner of the policy, if the company receives the premium, knowingly or unknowingly, from the assignee, the sole effect is, that the policy has been, as matter of fact, kept in being, to be enforced according to its terms. It concerns the company only to raise the question that the party interested in the policy did not tender the premium, and that it was not obliged to receive a premium from a stranger, if an assignee of this kind be a stranger. The assignee voluntarily keeps the policy alive to be enforced according to its terms, and his sole right is confined to a claim he may make to the. amount of the premiums paid by him.

I am of opinion (Brummer v. Cohen, supra) that it is presumed from the form of a policy of this kind that it was issued for the purposes declared-to be lawful by the act of 1840, and that the force of this presumption would not be destroyed, by proving that the wife had once before assigned the policy for the husband’s benefit, regaining it by reassignment. Perhaps, though it is not necessary to decide this, no amount of acts or words on the part of the wife, after the policy is issued, could be given in evidence to show that the policy was not protected by the statute, for she might in that way succeed in violating the intent of the statute which is a prohibition upon her.

We think the learned judge was right, in the exercise of his discretion, in adjudging costs against the plaintiff. There might be a doubt, if only personal rights were concerned, .that depended upon the agreement of parties. But there is a matter of public policy involved. The statute is well known. Its construction has been settled for many years, and any party that bases a claim that is forbidden by it, should do so with the risk of paying the costs of the action in which the claim is made.

Judgment affirmed, with costs.

Freedman, J., concurred.  