
    Mary J. Killoran, Adm’rx, App’lt, v. Clinton W. Sweet, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    iHSDIiANCE - (LIFE) —ASSIGNEE OF POLICY HOT LIABLE FOB. ALLOWING IT TO' LAPSE.
    In an action for damages caused by defendant in permitting a policy on the life of plaintiff’s intestate, which was assigned to defendant, to lapse, it appeared that the policy was assigned to secure the assignee against a contingent liability dependent on the life of the insured, and that such assignee was paid by a third person a sum sufficient to pay the premiums while such contingency existed, but that he did not agree to pay them. Feld, that defendant was not liable for damages caused by permitting the policy to lapse.
    Appeal from judgment in favor of defendant, entered on verdict directed by the court.
    - Action to recover damages alleged to have been caused by defendant allowing a policy on the life of plaintiff’s intestate, which had been assigned to him, to lapse.
    
      Henry A. Forster, for app’lt; Edward Jacobs, for resp’t.
   Follett, J.

In October, 1869, Margaret Killoran died, leaving a will, which was duly probated, by which she devised the fee of No. 350 Sixth avenue to Dominick J. Killoran, her son, subject to a charge of $4,500, payable to John H. E. Killoran, another son, in instalments of $250 on each 1st day of May, beginning May 1, 1870, and ending May 1, 1887. It was provided that, in case said annuitant died before the whole sum should be paid, the subsequent annual payments were to be paid to persons mentioned in the will. Dominick J. Killoran paid to his brother $250 annually for eight years, $2,000 in all, the last payment being made May 1, 1877. This left a charge of $2,500 on the premises, payable in ten annual instalments on each "1st day of May thereafter. On the 22d of November, 1877, Dominick J. Killoran conveyed the premises to the defendant in this action by a full covenant deed, and at the same time John H. E. Killoran acknowledged the receipt of all previous annual payments due him, and conveyed all of his interest in the premises to the defendant; and for the purpose of securing the defendant against the liability of paying annual sums to other persons in case John H. E. Killoran died before the expiration of the ten years within which the remaining $2,500 were to be paid, Dominick J. Killoran procured a policy of insurance for $2,500 on the life of John H. E. Killoran, payable to his representatives or assigns. It bore date November 20,1877, and the annual premium thereon was $56.75, amounting for ten years to $567.50, which sum Dominick J. Killoran delivered to the defendant, wherewith to pay the premiums on the policy for ten years. On the day the policy was issued it was assigned by John H. E. Killoran to the defendant. July 16, 1886, John H. E. Killoran died of delirium tremens at Bellevue Hospital in the city of New York. Subsequently letters of administration were granted to his widow, who brings this action to recover damages against the defendant for permitting the policy to lapse. She claims that she is entitled to recover $2,872, the amount which would have been due on the policy had all the premiums been paid and all the conditions of the policy kept and performed.

The defendant answered that the policy was solely for his. indemnity and benefit, and that he stopped paying the premiums because the insured violated the terms of the policy by impairing his health by the use of alcoholic stimulants, and by traveling and residing outside of the limits of residence and travel permitted by the terms of the policy. To establish the liability of the defendant for damages arising from his failure to pay the annual premiums it was necessary for the plaintiff to show that the defendant was under some obligation to make the payments. This was the issue which she tendered in her complaint, and which she was bound to establish in order to recover. The defendant introduced no evidence, and the case was disposed of on that given by and in behalf of the plaintiff. She called the defendant, and he was examined in respect to the terms of the agreement under which the policy was assigned to and the money left with him for the payment of future premiums. He testified that he never promised to keep the policy alive, and that it was issued and assigned to him solely for his security. There is nothing in the case impeaching or discrediting this testimony; indeed, the natural inference deduoible from all the evidence is that this policy was taken out and paid for by Dominick J. Killoran and assigned by John H. E> Killoran to the defendant solely for the latter’s security against any claims that might be made by others for the payment of the sum charged on the land.

There is not the slightest conflict in the evidence, and there was no disputed question of fact, and no question for the jury. The defendant had in his hands $283.75 of the money delivered to him by Dominick J. Killoran which he had not expended in paying premiums on the policy, for which amount he consented that a verdict might be directed against him, with interest. Under the complaint the plaintiff was not entitled to recover this sum in this action, but the defendant, in his answer, averred that he agreed with Dominick J. Killoran to pay to the plaintiff such part of $567.50 as he should not expend in the payment of premiums on the policy. When John JEt. B. Killoran died there was but one annual payment of $250 left as a charge on the land, which the defendant has satisfied. It seems to us that the bare statement of the facts of this case demonstrates without the aid of argument and illustration that the plaintiff is not entitled to recover. The vital allegation in her complaint is “ that said defendant agreed out of said moneys to keep said policy alive by paying premiums thereon which should become due, including the premium which should become due on the 20th day of November, 1886.” This allegation she not only failed to prove, but absolutely disproved it by her own witness.

The judgment is right, and must be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur.  