
    TENNANT v. DUDLEY.
    (Supreme Court, General Term, Eifth Department.
    April 13, 1893.)
    Life Insurance—Who Entitled to Proceeds.
    A policy of life insurance for §l,8p0 was made payable to a creditor of the insured, who received the entire amount of the policy on the death of the insured. In an action by the administrator against the creditor, the question was whether the policy was issued to the creditor as collateral security for his claim, or whether he took the absolute title. Held, that a written agreement executed within two months of the death of the insured, wherein.the creditor agreed to receive §500 as his part of the sum to be paid on the policy, and which provided for the distribution of the residue among the insured’s heirs and next of kin, warranted a finding by the jury that the creditor took the policy only as collateral security.
    Appeal from circuit court, Chautauqua county.
    Action by Moses D. Tennant, administrator, etc., of William H. Renouard, deceased, against Eugene Dudley, for the amount received by defendant on a policy issued on the life of plaintiff’s testator. From a judgment entered on a verdict in plaintiff’s favor, and from an order denying defendant’s motion for a new trial, made on the judge’s minutes, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Cooke, Fisher & Wade, for appellant.
    S. W. Mason, for respondent.
   MACOMBER, J.

This action was brought to recover the amount received by the defendant upon a policy or certificate of life insurance issued by a company known as the “Equitable Aid Union,” in the sum of $1,800, upon the life of the plaintiff’s testator, William H. Renouard. This certificate or policy was originally made payable to the insured, or to his wife, but subsequently it was surrendered, and a new certificate or policy taken, made payable to the defendant, Eugene Dudley. This policy was originally issued in the year 1886. In November of that year the arrangement for a change in its terms in respect to the beneficiary or payee was made by the insured and the defendant, and the same was ratified and carried into effect by the company. The complaint proceeded upon the ground that this assignment of the original policy, or the arrangement by which the new certificate was issued to the defendant, was made as collateral security to the defendant for the payment of an indebtedness of about $180 owing to him by the insured. The answer averred that such indebtedness amounted, at the time of this arrangement, to upwards of $1,300, and that the defendant took an absolute title to the policy, and was entitled to the payment of the entire sum of $1,800. It was also averred in the answer and proved that, after the assignment of the policy to the defendant, the latter continued to pay all premiums falling due until the 29th day of January, 1889, the date of the death of the insured. No question was raised with the company touching the right of the defendant to receive, under the assignment, the entire sum of $1,800. This action is brought to recover such sum, less the amount of the indebtedness owing by the insured to the defendant. The evidence shows with much conclusiveness that the defendant received the assignment of this policy or certificate as collateral security only for the payment to him of any sum which might be owing by the insured to him. The verdict of the jury was in the sum of $1,196 for the plaintiff. This result is amply sustained by the clear preponderance of the evidence. Indeed, in view of a writing put in evidence, executed by the defendant, with others, on the 5th day of March, 1889, any verdict more favorable than this to the defendant could hardly be expected; and, if such verdict had been rendered, the same could not have withstood a motion for a new trial, upon the ground that it was against the weight of the evidence. By this written agreement, under seal, executed within two months of the death of the insured, the defendant agreed to receive as his part of the sum to be paid by the insurance company the sum of $500 in full discharge of all his claims upon the policy, and the residue of that sum was to be divided in a manner not necessary to state for the purposes of this decision, except that it was to go to the supposed next of kin or heirs at law of the insured. With this unmistakable evidence in the case, the claim now set up by the defendant must be deemed to be wholly untenable. Certain exceptions appear to the rulings of the court upon the reception of evidence which have been a subject of examination by us, but they are not, in our judgment, of sufficient moment to call upon us for any discussion. The judgment and order appealed from should'be affirmed, with costs. All concur.  