
    Robert Talbert, Resp't, v. James Storum, Administrator, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Bill of pabtioulabs—Affidavit.
    In an action originally begun upon a policy against a life insurance company, the plaintiff claiming as assignee, the administrator of insured was_ impleaded in the company’s place, "and moved for a bill of particulars stating the consideration for the transfer of the policy upon an affidavit verified by his attorney, alleging on information and belief that he had no knowledge as to what matters were relied upon by plaintiff to establish a consideration, or facts to establish an insurable interest in plaintiff. Upon the argument of the motion the assignment was produced and was under seal, and to the import alleged in the complaint. Held, that the motion "was properly denied.
    
      Appeal by the defendant, James Storum, administrator of the goods and chattels of William Storum, deceased, impleaded as defendant in the place of the original defendant, The Mutual Reserve Fund Life Association, from an order denying his motion for a bill of particulars, entered in Erie county, March 18, 1892.
    
      J. L. Slater, for app’lt;
    
      B. S. Farrington, for resp’t.
   Macomber, J.

This action was originally begun against The Mutual Reserve Fund Life Association upon a policy issued by that company to William Storum in his life time, in the sum of $1,000, payable to the estate of the insured. A like demand having been made upon it by the defendant, James Storum, as administrator of the goods and chattels of William Storum, the insurance company made a motion at special term interpleading the administrator as defendant in its place, making no defense whatever to its liability to pay to one or to the other of the parties the sum of $1,000, the amount of insurance claimed in the complaint.

The complaint alleged that this policy was issued to William Storum on the 7th day of August, 1883, and upon reference to the policy or certificate, it is seen that by it the company undertook to insure this so called member in the sum of $1.000. The complaint further alleged, that on the 28th day of October, 1883, William Storum, for a valuable consideration, sold, assigned and transferred to the plaintiff such policy or certificate of membership, and all sums of money, interest, benefit and advantage whatsoever, then due or thereafter to arise upon such certificate or policy. That such assignment was, thereafter, and on the 2d day of November, 1883, duly consented to and approved by The Mutual Reserve Fund Life Association, and that the plaintiff possessed an insurable interest in the life of William Storum equal to the amount assigned bjr the policy.

Upon demand being'made and refused, the motion for a bill of particulars was made at the special term upon an affidavit to compel the plaintiff to furnish such bill stating the consideration for the transfer of the policy alleged in the complaint, and the amount of the insurable interest of the plaintiff in the life of the deceased. No answer, as yet, has been interposed by this defendant. The affidavit which was made, not by the defendant, but by his attorney of record, alleged, upon information and belief only, that the defendant has no knowledge as to what matters are relied upon by the plaintiff to establish a consideration for the alleged assignment of the certificate of membership or policy set forth in the complaint, and that the defendant is unable to determine upon what state of facts the plaintiff relies to establish in himself the possession of an insurable interest in the deceased. The affidavit further stated, upon like information and belief, that the defendant was prepared to deny the existence of any consideration for the alleged assignment, or that the plaintiff possessed, an insurable interest in the deceased equal to the amount assigned, and further that by reason of a want of particularity in the complaint of the plaintiff, the defendant was “unable to ascertain the specific propositions for which the said plaintiff contends in respect to the said consideration for the said assignment and the insurable interest, nor is the defendant enabled, in any way, to protect himself against, surprise upon trial of the action. ”

This affidavit is wholly insufficient to enable the court to grant the motion made upon the strength thereof, and accordingly the special term was quite right in denying it. No facts were set forth, nor was there any reason given why the affidavit was not made by the defendant, instead of his attorney. This objection ought to have been, and probably was, fatal to the motion at special term. But aside from the foregoing consideration, however, it appeared at the special term on the production of the assignment alleged in the complaint, that the same was under seal, and was to the import alleged in the complaint, and that the same was consented to in writing by the insurance company by an indorsement thereon bearing date November 2, 1883. The seal to this instrument conclusively imports a sufficient consideration to uphold the transfer. Torry v. Black, 58 N. Y., 185.

Nor is the assignment, as is now argued by the learned counsel for the appellant, an executory instrument, and, hence, it does not come under the rule defined by § 840 of the Code of Civil Procedure, which makes a seal on an executory instrument presumptive evidence only of a sufficient consideration, which may be rebutted as though the instrument was not sealed. There is nothing in the language of the assignment indicating that it was, in any respect, executory. It was absolute in terms.

It is true that an insurable interest, in order to sustain a policy of life insurance upon the life of another person, must be pleaded and proved; but it is doubtful whether this defendant, as the administrator of the estate of the insured, can attack the validity of this assignment of the policy, without averring something more than is foreshadowed in his attorney’s affidavit; but it is not necessary at the present time to pass upon that question.

For the reasons above stated, the order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

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