
    Charles Helfrich, Respondent, v. The John Hancock Mutual Life Insurance Co., Appellant.
    (New York Common Pleas—Additional General Term,
    May, 1894.)
    A married woman whose life was insured in favor of her husband and who desired to change the beneficiary, but was unable to obtain her husband's consent, as she did not know where he was, made application to have the policy made payable to plaintiff ‘ ‘ provided my husband does not claim; ” to which the company’s assistant superintendent replied that the beneficiary had been changed over to the plaintiff. Held, that such reply must be read in connection with the application and meant only that the change was made subject to the husband’s rights, and that in the absence of proof that the husband had released his claim or was dead, or that his claim was barred by the statute, title to the policy in the plaintiff was not shown.
    - Appeal by the defendant from a judgment of the District Court in the city of New York for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    
      The nature of the action and the material facts are stated in the opinion.
    
      Leonard J. Langbein, for appellant.
    
      Joseph Steiner, for respondent.
   Geigerich, J.

This action was brought upon a policy of insurance, taken out by one Katherina Maierhofer upon her own life, in favor of her husband, for the sum of §100, payable at her death.

The answer was a general denial, that plaintiff was not the real party in interest and that the title of the plaintiff to the policy was void under the statute against the wagering of policies of insurance.

The facts appearing from the evidence are that the insured, wishing to change the beneficiary under the policy in suit, applied to the agent who collected the premiums, telling him to have the change made. That the agent advised her that no such change could be made unless she obtained a release from her husband. Thereupon she told him she did not know exactly where her husband was at that time. It then appears that the agent filled out the ordinary application for the change of a beneficiary in favor of the plaintiff, absolutely; but the company refused to accept it. Another application was then made out at the office of the defendant, and was left with the insxxred to be signed. After keeping it two weeks, she signed it on October 31, 1892, and delivered it to the agent. This application contains the following request, addressed to the defendant company: “ Please make Policy No. 337,355, B, on my life for the benefit of Charles Helfrieh, my friend -x- -x- * provided my husband does not claim.”

Plaintiff’s counsel, in his brief, claims that this instrument has been tampered with. No such claim was made upon the trial, and cannot, therefore, be asserted upon appeal.

On the 18th day of November, 1892, an assistant superintendent of the defendant wrote the following postal card to the insui'ed, viz.:

“New York Branch John Hancock Mutual Life Insurance Company of Boston, Mass., 28 Union Square, New York, Nov. 18, 1892.
“ Mrs. Katherina Maierhofer :
“ Dear Madam.—The beneficiary of your policy has been changed over to Charles Helfrich. Please pay collector when he calls next week, and oblige,
“(Signed) J. Woodruff,
“Ass’t Supt.
28 Union Square, N. Y.”

The respondent claims that this operated as a change of beneficiary.

Even if we concede, for argument’s sake, that the husband’s interest in the policy is not irrevocable, and that Woodruff was authorized by the company to change the beneficiary (which is disputed by the defendant), still the statement of Woodruff that the beneficiary had been changed must be read in connection with the application for such change, which was expressly made subject to the rights of the husband, and which in effect was: If he “ does not claim ” then the plaintiff is to be the beneficiary. As it has not been shown that the husband has released his claim, or that he is dead, or that his claim had been barred by the Statute of Limitations, the plaintiff, even under this view of the case, has wholly failed to establish any title to the subject-matter of the action. The motion to dismiss the complaint, made by the defendant when the plaintiff rested and renewed at the close of the case, should, therefore, have been granted.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  