
    Moses D. Tennant, Adm’r, Resp’t, v. Eugene Dudley, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    Insurance (life) — When policy held only as collateral.
    A certificate of insurance was originally issued payable to the insured or his wife, but it was surrendered and a new one issued payable to defendant, and upon the death of insured the amount thereof was paid to him. In an action by the administrator of the insured for such money, it was alleged that defendant received the certificate as collaieral security for payment of an indebtedness owing to him from the insured; while defendant claimed that he took an absolute title thereto. It appeared that two months after the death of the insured defendant, with others, executed an agreement, by which he agreed to receive as his share of the insurance moneys $500 in full discharge. Held, that a verdict in favor of plaintiff was proper.
    Appeal by the defendant, Eugene Dudley, from a judgment entered in Chautauqua county, January 26, 1892, on the verdict -of a jury at circuit, and also from an order denying his motion for a new trial made on the minutes of the court.
    
      Cooke, Fisher & Wade, for app’lt; S. W. Mason, for resp’t.
   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 This certificate or policy was originally made payable to the insured, or to his wife, but subsequently it was surrendered and a new certificate or policy taken made payable to the defendant, Eugene Dudley.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 Hoveinber 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 one hundred and eighty dollars owing to him by the insured.

The answer averred that such indebtedness amounted, at the time of this arrangement, to upwards of thirteen hundred dollars, and that the defendant took an absolute title to the policy, and was entitled to the payment of the entire sum of eighteen hundred dollars. 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 eighteen hundred dollars.

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 15th day of j^Tarch, 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 five hundred dollars 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.

Judgment and order appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.  