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THE

NORTHEASTERN REPORTER.

VOLUME 76.

(183 N. Y. 291)

August 2, 1887, George N. Cuyler assigned CUYLER V. WALLACE et al. . and delivered said policy of insurance to his (Court of Appeals of New York. Dec. 15, 1905.) father, George Cuyler, and a duplicate of said 1. INSURANCE-ASSIGNMENT OF LIFE POLICY | assignment was thereafter, and on or about -REASSIGNMENT-EVIDENCE. .

February 18, 1891, duly filed in the office of Evidence held insufficient to sustain pre

the Connecticut Mutual Life Insurance Comsumption of reassignment of a life insurance policy assigned by the insúred to his father, but

pany. (4) George Cuyler died on or about found in the possession of another, without November 7, 1893, at the city of Albany, evidence as to the time when or the manner in leaving a last will and testament, which which such other obtained repossession.

was duly admitted to probate by the surro2. SAME-EVIDENCE. Where a policy was assigned by a son to

gate of Albany county on the 11th day of his father, a contention that said policy, show July, 1894, and the defendants Matthew J. ing upon its face that the son was the person

Wallace and Henry S. McCall were duly insured, was reassignable and transferable to him by mere delivery without any writing, and

appointed as executors of said last will and when found in the possession of the son after testament and duly qualified as such, and the death of the father will be presumed to have ever since that time have been and now are been assigned for a valuable consideration, can

acting as such. (5) After the assignment of not be sustained as, in the absence of a written assignment, the burden is on the holder to

said policy of insurance and the filing of a show that he is a bona fide holder and the duplicate thereof with the insurance commanner in which he obtained the policy.

pany, and previous to the death of George (Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, $8 484, 1648.]

Cuyler, plaintiff's intestate, George N. Cuy

ler was in possession of said policy of inAppeal from Supreme Court, Appellate

surance and continued in possession thereof Division, Third Department.

up to the time of his death, claiming to be Action by Emma F. Cuyler, administratrix

the owner thereof; and the defendants of George N. Cuyler, against Matthew J.

Henry S. McCall and Matthew J. Wallace, Wallace and others, executors of George Cuy

as executors. of George Cuyler, deceased, ler. From a judgment of the Appellate

never had possession of said policy of inDivision (101 App. Div. 207, 91 N. Y. Supp.

surance. (6) The defendants, as executors 690), affirming a Judgment for plaintiff, de

of said George Cuyler, deceased, filed an fendants appeal. Reversed.'

inventory of said estate in the office of the The following are the stipulated facts: surrogate of Albany county, on or about the “The parties to the above-entitled action 11th day of October, 1894, but no claim is hereby stipulate and agree upon the follow. therein made to the policy of insurance in ing facts in this case: (1) That on or about question. (7) The defendants, as such exMay 7, 1867, the Connecticut Mutual Life ecutors, rendered a final account of their Insurance Company issued and delivered to proceedings in the year 1895, but no claim George N. Cuyler its policy of insurance on is made in the said final account of their the life of George N. Cuyler, in and by which proceedings to the policy of insurance in policy and contract of insurance the said question. (8) Objections were filed to the company did insure the life of said George account of the defendants as executors in N. Cuyler in the sum of $2,500, and did that proceeding by and on behalf of Charles promise and agree to pay the said sum of M. Cuyler and Ida P. Cuyler, children and $2,500 to the legal representatives of the said next of kin of their testator; one being that George N. Cuyler within 90 days after satis the said executors had failed to account or factory proofs of the death of the said charge themselves with the said policy of George N. Cuyler bad been furnished to insurance and claiming that it belonged to said company. (2) That said policy of in the estate of George Cuyler. (9) Upon that surance became and was a fully paid up objection testimony was taken before the policy of insurance long before the death of surrogate of Albany county. George N. Cuysaid George N. Cuyler. (3) On or about ' ler was subpænaed and sworn as a witness,

76 N.E.-1

was required to and did produce said policy | death of George Cuyler, the father, George of insurance, and did then and there tes- N. Cuyler, the son, was in possession of the tify that he was the owner of and in pos policy of insurance and continued in possessession of said policy of insurance. (10) sion thereof up to the time of his death, That thereafter, and on or about February claiming it as owner. The defendants ren18, 1896, a decree was made by the surrogate dered a final account of their proceedings in of Albany county, in the said final judicial the year 1895, but no claim was made by settlement of the accounts of the defendants them to said policy of insurance in the inas executors of the last will and testament ventory or account. Two children of the tesof George Cuyler, deceased, and duly filed in

tator filed objections to this account; one reasaid surrogate's office on that day, in and

son being that the executors failed to charge by which it was provided, among other

themselves with the policy. Testimony was things, that the defendants herein retain the

taken under these objections before the Sursum of $500 for the expenses of prosecuting

rogate's Court of Albany county, and George an action against George N. Cuyler for the

N. Cuyler was subpænaed as a witness. He recovery of said policy of insurance. (11)

was required to produce and did produce the That said George N. Cuyler died intestate on

policy, and testified that he was the owner of the 22d day of August, 1903, at the city of

and in possession of the same. In February, Albany, where he was born and always

1896, a final decree was entered in this proresided. (12) That the plaintiff herein was

ceeding. The surrogate did not pass upon the duly appointed as the administratrix of his

question of the ownership of the policy, but estate by the surrogate of Albany county,

inserted a provision in the decree providing on or about September 15, 1903, and that

that the defendants should retain the sum of

$500 for the expenses of prosecuting an action she duly qualified, and ever since that time has been and now is acting as such adminis

against George N. Cuyler for the recovery of tratrix. (13) That the said defendants never

the policy of insurance. In August, 1903, attempted, by action or any other proceed

George N. Cuyler died intestate in the city

of Albany, and the plaintiff was duly aping, to recover said policy of insurance from

pointed as the administratrix of his estate. George N. Cuyler in his lifetime, or since

The defendants thereupon made a claim upon bis death, except that the said defendants

the insurance company for the moneys due did make a claim to the moneys due on said

on the policy. After the death of George N. policy of insurance from said Connecticut

Cuyler his administratrix brought an action Mutual Life Insurance Company after the

against the insurance company to recover on death of said George' N. Cuyler. (14) That

the policy, and on motion of the company the George N. Cuyler resided with his wife, the

defendants were impleaded and the amount plaintiff herein, for many years prior to the

due on the policy was paid into court. death of George Cuyler, at 131 Chestnut

The trial court found as conclusions of street, in the city of Albany, N. Y., and that

law: First, that the said George N. Cuyler said George Cuyler resided on Clinton ave

was at the time of his death the owner and nue, in said city of Albany (15) Annexed

holder of said policy of life insurance in the hereto is a copy of the will of said George

Connecticut Mutual Life Insurance ComCuyler.” Dated April 23, 1904, and signed

pany; second, that the plaintiff is entitled by respective counsel. The stipulation con

to judgment for the moneys due upon said tains a copy of the will of George Cuyler,

policy of life insurance described in the forethe father, and will be found in the record.

going findings of fact, and that she should Peter A. Delaney, for appellants. Mark have judgment therefor against the defendCohn, for respondent.

ants, together with the costs of this action,

to be paid out of the estate and not by the BARTLETT, J. (after stating the facts). defendants personally. The learned AppelThe facts are stipulated, and the sole ques late Division in a brief memorandum distion of law presented is whether the stipu- | poses of the question of law as follows: lated facts sustain the conclusions. In May, "The policy having been once shown to be 1867, the Connecticut Mutual Life Insurance legally owned by George Cuyler, there is a Company issued and delivered to George N. legal presumption of the continuance of ownCuyler a policy of insurance on his life for ership until some evidence be offered of its the sum of $2,500, payable to his legal repre retransfer to George N. Cuyler. The possessentatives on proof of death. In August, sion of the policy itself by George N. Cuyler 1887, George N. Cuyler assigned and deliy before the death of his father is not, in my ered the policy to his father, George Cuyler, judgment, alone sufficient to rebut the preand a duplicate of the assignment was filed sumption of continuance of ownership of the in February, 1891, in the office of the com policy by his father. When, in addition to pany. George Cuyler, the father, died in that possession, however, is shown the failNovember, 1893, in the city of Albany, leaving | ure of the executors of George Cuyler to find a last will and testament, wherein the de among his papers the assignment which was fendants were named as his executors. After once delivered to him, a legal inference would the filing of the duplicate assignment with | fairly seem to follow that that assignment the insurance company, and previous to the had been destroyed and the policy retrans

ferred by the father to the son. This is suf- | thereof up to the time of his death, claimficient in my judgment to establish a prima ing to be the owner thereof; and the defendfacie case of ownership in the son, and in ants Henry S. McCall and Matthew J. Walthe absence of other evidence is sufficient lace, as executors of George Cuyler, deceased, to sustain the conclusions of the trial jus never had possession of said policy of intice."

surance." (2) As contained in the ninth The single legal question presented is subdivision of the stipulation, which refers whether the administratrix of George N. Cuy to the evidence of the son, in the accounting ler, the plaintiff, has sustained the burden proceeding of his father's estate, which reads of proof resting upon her by showing that as follows: “George N. Cuyler was subthe policy, which was concededly assigned pænaed and sworn as a witness, was required and delivered by the intestate to his father, to and did produce said policy of insurance, was reassigned and delivered by the father and did then and there testify that he was to the son. The Appellate Division correct. the owner of and in possession of said policy ly stated the principles of law upon which of insurance." The manner in which George the defendants were entitled to rest in the N. Cuyler became possessed of the policy of first instance—that, the policy having been insurance, after he had assigned the same shown to be the property of George Cuyler, in writing and delivered it to his father, is the law presumes a continuance of owner wholly unexplained. All that appears in ship until some evidence of a retransfer ; this record might be absolutely true, even and that the mere possession of the policy if George N. Cuyler had found this policy by George N. Cuyler before the death of his of insurance among his father's papers durfather is not sufficient to rebut the presump ing the lifetime of the latter and placed it tion of continuance of ownership by the in his pocket without assignment or due aufather. The learned justice writing for the thority. There is no fact stipulated in the Appellate Division then states: “When, in record that overcomes the legal presumpaddition to that possession, however, is shown tion that the assignment in writing by the the failure of the executors of George Cuy son to his father of this policy and the deler to find among his papers the assignment livery of the same to the father is at the which was once delivered to him, a legal in- present time in full force and effect. The ference would fairly seem to follow that that mere evidentiary fact that the son was in assignment had been destroyed and the policy possession of the policy, claiming to be the retransferred by the father to the son. This owner thereof prior to the death of the father, is sufficient, in my judgment, to establish falls far short of the proof necessary to overa prima facie case of ownership in the son, come the legal presumption that the father and in the absence of other evidence is suf died possessed in law of this policy and that ficient to sustain the conclusions of the trial his legal representatives are entitled to coljustice."

lect the same. This court has recently had It is to be remarked in the first place that occasion to pass upon the futility of embrait does not appear in the stipulated facts cing within findings mere evidentiary facts. that the executors of George Cuyler failed Alcock v. Davitt, 179 N. Y. 9, 71 N. E. 264. to find among his papers the assignment The plaintiff, respondent, insists that this which was once delivered to him. All that policy, showing upon its face that George appears in the stipulation is that the ex N. Cuyler was the person insured, was as. ecutors of George Cuyler made no affirmative signable and transferable to him by mere declaim to the policy in question, either in livery without any writing, and will be pretheir inventory or final account, and never sumed to have been made for a valuable conattempted by action or other proceeding to sideration. The authorities cited in support recover said policy of insurance until after of this proposition do not sustain it, nor is it the death of George N. Cuyler, the son, when | a correct statement of the law governing this they claimed from the company the moneys case. The rule applicable to negotiable indue on the policy. The affirmative fact of a struments payable to bearer or indorsed over fruitless search for the assignment does not in blank does not apply to the present situaappear in the stipulation, and, if it did, it tion. The holder of a promissory note inwould have had no particular significance, dorsed in blank, producing the same, need not as a duplicate was on file with the insurance give other evidence of title unless his possescompany. On this vital point of the reas sion is impeached. Bedell v. Carll, 33 N. Y. signment of the policy by the father to the 581; Collins y. Gilbert, 94 U. S. 753, 24 L. Ed. son we have in this stipulation merely a 170. The mere naked possession of a nonstatement of evidentiary facts. These facts negotiable instrument is not evidence of ownare: (1) As set forth in subdivision 5 of ership. In the absence of a written assignthe stipulation as follows: "After the as ment to him, the holder must show that he signment of said policy of insurance and the is a bona fide owner and the manner in which filing of a duplicate thereof with the insur he became such. This court has held that ance company, and previous to the death of proof of an advance of money to a mortgagee, George Cuyler, plaintiff's intestate, George coupled with proof that the one making the N. Cuyler, was in possession of said policy advance has possession of the mortgage, does of insurance, and continued in possession not establish the fact of the purchase of the mortgage, or of a pledge thereof as security | London, Daniel Dougherty, Jr., and others. for the advance. In the absence of written From a judgment of the Appellate Division evidence the presumption is against any | (88 N. Y. Supp. 1096, 95 App. Div. 618), aftransfer. Bowers v. Johnson, 49 N. Y. 432. firming a judgment in favor of the insurance In White v. City of Brooklyn, 122 N. Y. 53, company (84 N. Y. Supp. 10), all the other 25 N. E. 243, the ownership of certain certifi parties appeal. Reversed. cates of sales by the collector of taxes was

Amos Van Etten, H. H. Flemming, and involved. The only evidence of the assign

George A. Clement, for appellants. A. T. ment was the indorsement of the purchaser's

Clearwater, for respondent. name upon the back of the certificates. This court held that not only were assignments

WERNER, J. This action was brought necessary, but that under a local statute the

to reform a fire insurance policy, and upon same were required to be filed in the office of

the contract as reformed to recover the the collector of taxes and assessments. In

amount of loss sustained. The reformation Richardson v. Moffit-West Drug Co. (Mo.

asked for was the insertion in the policy of App.) 69 S. W. 398, the Missouri Court of

the names of the plaintiffs and defendants Appeals held that the mere fact that a life

Dougherty as beneficiaries in the place of policy of plaintiff's intestate, payable to his

Catharine Dougherty, deceased, the benefici. administrator, was in the possession of and

ary named therein. The facts upon which paid to the defendant, did not raise a pre.

this claim for reformation is based are briefsumption that it had been assigned to defend

ly as follows: For many years Catharine ant. The learned court said (page 400):

Dougherty had been the owner of the insured "The salient fact in the case is that the policy

premisès. She died intestate in April, 1897, of insurance bears no assignment on it in

leaving her surviving the plaintiffs and the writing to the defendant, and no assignment

defendants Dougherty, her husband and chilor pledge, either verbal or written, was

dren, respectively, who succeeded to her inshown; nor does anything appear in regard

terest in the premises. The policy which had to the defendant's right to the proceeds, ex

been issued to Catharine Dougherty in her cept the inference which may be drawn from

lifetime expired in June, 1898, and at that its having the policy in its possession, or such

time the policy in suit was issued by the defurther inference as may be deduced from

fendant insurance company in her name to the allegations of the petition." The case at

run for three years from its date. The loss bar is barren of any evidence as to the time

set forth in the complaint occurred in May, when or the manner in which the plaintiff's

1900, or about two years after the issuance intestate became possessed of this policy.

of the policy. This last-mentioned policy There is nothing in the facts stipulated that

was issued upon the application of the plain. furnishes such proof.

tiff Rose E. Dougherty, a daughter of the de The judgment appealed from should be re

ceased Catharine, and her st-tement of what versed, with costs to defendants in all the

occurred at the time of its issuance is subcourts to abide the event, and a new trial

stantially as follows: On or about June 6, ordered.

1898, Irving McCausland, a clerk in the office

of his father, John McCausland, who was the CULLEN, C. J., and GRAY, O'BRIEN,

Kingston agent of the defendant insurance HAIGHT, VANN, and WERNER, JJ., concur.

company, applied to her for leave to renew

the insurance then about to expire upon the Judgment reversed, etc.

premises described in the complaint. She

told him her father was away, but she would (183 N. Y, 302)

ascertain about it and let him know; that DOUGHERTY et al. v. LION FIRE INS. when her father came home she asked him

CO., LIMITED, OF LONDON, et al. about it, and he toid her to insure the prop(Court of Appeals of New York. Dec. 15, 1905.)

erty ; that thereupon she went to McCausTRIAL-FINDING-NECESSITY.

land's office and paid the premium, at which In an action on a fire insurance policy, time she told Irving McCausland that her where the question at issue was whether the mother was dead, and that he said that plaintiff, before the delivery of the policy in would make no difference; that thereafter suit, told the agent of the insured that the person in whose name the policy was made out

she received the policy by mail, addressed to was dead, and on that point the trial court made Rose E. Dougherty; that she merely glanced no finding, but simply found the evidence as at it, paying no particular attention to its given by the witness on that question and drew

provisions. This testimony was not contraa conclusion which was unsupported by any finding of fact, the judgment thereon must be

dicted by Irving McCausland, who was called reversed.

as a witness for the Doughertys. When (Ed. Note.-For cases in point, see vol. 46, asked whether Rose E. Dougherty bad told Cent. Dig. Trial, $$ 908, 909, 914.)

him that her mother was dead, he replied: Appeal from Supreme Court, Appellate "I don't remember. If she did so tell me I Division, Third Department.

did not understand it, and at the time the Action by Rose E. Dougherty, executrix of policy was issued I did not know or under Daniel Dougherty, and others, against the stand that Catharine Dougherty was dead." Lion Fire Insurance Company, Limited, of - The learned trial court, instead of deciding

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