
    George H. Maynard, App’lt, v. Angeline Vanderwerker, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    Appeal—Evidence.
    A judgment, where the decided weight of evidence upon a material issue is adverse to it, will be reversed.
    Appeal from a judgment dismissing the complaint.
    
      Sidney Williams, (K B. Barnum, of counsel,) for app’lt; Thomas JB Pearsal, for resp’t. -
   Pratt, J.

This case was clearly decided* at special term in accordance with an overwhelming weight of evidence upon all the issues except one, to wit, whether or not the defendant was made a beneficiary of the certificate in question under an agreement that it should be issued to her, and she should thereafter pay all the assessments levied thereon. It is not without much hesitation that I am constrained to disagree with the conclusion reached by the learned judge who tried the case with the greatest care and circumspection, with the advantage of seeing the witnesses and hearing them testify; but a careful reading of the evidence has impressed me so strongly that, upon the one issue above stated, the decided weight of evidence is so much against the contention of the defendant, that I feel constrained to write for a reversal. Nay, more, I am of opinion that this defense is an afterthought, born of a failure to make out any case on the ground of incapacity, fraud, or undue influence.

In the first place, there is no sufficient evidence that such an agreement was ever made. The principal witness for defendant upon this point is her husband, who is interested in the result, but he fails to testify to any agreement. Besides, what he did say was made to appear unreasonable and incredible on a cross-examination. He nowhere states that the defendant agreed to accept the policy or pay the assessments. A Mrs. Tams is the next witness in importance. She testifies to nothing as regards such a contract, except to certain alleged declarations made by Ray Smalley, the insured, before she was married to the plaintiff. The only matter testified to by Mrs. Tams that looks like an agreement is the state-merit that Eay said, “ My aunt agreed, when I insured, to pay the assessments, and I agreed that it should always be hers.” It is to be observed that this is evidence of declarations given long after they were made, which should always be scrutinized with great care. For my part, I do not believe that Eay Smalley ever made such a declaration. It is unreasonable that such an agreement would be entered into by a person of years with a young person like Eay Smalley, but what makes it more unreasonable is that it is inconsistent with the whole conduct of all the parties. Besides, the cross-examination of this witness showed either that her story was unreasonable, or her memory sadly at fault. The most charitable construction that, in view of all the circumstances, can be placed upon her testimony, is that she has talked so much about this matter with the defendant and others that she has got matters mixed in her mind. But the evidence, I think plainly shows that the defendant never paid any assessments on this policy, and never had rightful possession of it after the marriage of Eay Smalley. It is even doubtful if she ever had it before that time. Here the husband of defendant again says that upon one occasion he saw his wife band Eay some money to pay an assessment. That might have been a loan, as the balance of the conversation was not given; but what stamps this assessment theory is the fact that on one occasion, in the presence of Mr. Livingston, a disinterested witness, Eay asked the defendant to lend her a small sum to make up enough to pay an assessment. The defendant did so, and said: “I will lend it to you. Be sure and pay me back,”—which is utterly inconsistent with the theory that she was paying the assessments. There is not a scintilla of proof by any officer of the company, or by a receipt, that defendant ever paid an assessment, except one receipt, which was proved to be a forgery. The fact that defendant had a few receipts was explained by the fact that Eay kept them in her trunk or box which was left at the house of defendant, to which she had access, and of the contents whereof she admits she took possession. Neither do I think there is much doubt that the defendant took the policy from the trunk, and afterwards stated to Eay it had been lost. Eay Smalley certainly wanted it in order to effect a transfer to her husband, and went to defendant, who told her it was lost, which was untrue, as proved by the declarations of the defendant to Mrs. Livingston. The whole conduct of defendant is inconsistent with her claim. If there was such an agreement, and she had paid the assessments, would she have told Eay Smalley it was lost? Would she not rather have told her she had it, and owned it by virtue of the agreement? Again, the conversation with Mrs. Livingston is remarkable. She does not say, “I took it out of the trunk because it was mine,” or because she had agreed to pay assessments on it, but she gives as a reason that it was made out in her name. It is to be noticed that at no time during the life of the insured did the defendant lay any claim to the policy. There cannot be any doubt of the policy being taken from the trunk, as two disinterested witnesses testify to defendant’s admissions in regard to it. Again, in writing to the supreme secretary, stating her claim, after she had time to consider all the matters, she writes: “Mr. Maynard could have had the policy at any time, if he desired.” Also, in a conversation with Mr. Livingston a short time before the trial, she stated “that, if Ray or Mr. Maynard had asked me for the certificate, I would have given it to them willingly.” Are these statements at all reconcilable with her claim of absolute ownership? Further, can there be any doubt but that Ray did call on her for the certificate, in order to make the change, and was told it was lost, and on the strength of that statement made oath of its loss to effect the transfer ? It is a significant fact that the claim of a vested interest in the certificate appears for the first time in the amended answer. In the whole history of the case, no claim is made of vested ownership until this amended answer is filed, although it was asserted in an affidavit and letter that she had paid some assessments, but not that she had ever agreed to pay assessments. It is clear that she paid no assessments after the marriage, and there is no proof, worthy of belief, that she paid any before that event.

In writing this opinion, I have assumed that the evidence of Mrs. Tams and defendant’s husband, of the declarations of Ray Smalley, were competent to prove the contention of defendant; but it is in the nature of the declarations of an assignor, after an assignment, to impeach the title of a subsequent assignee from same assignor. Assuming, however, that this evidence was properly admitted and considered, I think the case on part of the defendant utterly fails. Much might be said of the contradiction and inconsistencies of the evidence offered by defendant, but enough has been said to show the effect the evidence has had upon my mind. It may be added, however, that the fact that plaintiff became the beneficiary in good faith, and supposed he was rightfully vested with such interest, is shown by his changing his policies in favor of his wife, the deceased.

Judgment reversed, and new trial granted; costs to abide the event.

Dykman, J., concurs; Cullen, J., dissents.  