Flaherty v. Metropolitan Life Insurance

38 Misc. 759, 78 N.Y.S. 824

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1902
• Status: Published

Opinion

Per Curiam.

This is an action on a policy of insurance issued on the life of one Margrath Wilkinson. Judgment was rendered in favor of plaintiff. Defendant appeals. The plaintiff introduced an assignment of the policy to herself from one John Wilkinson. She also proved the death of said Margrath Wilkinson. She stated that said John Wilkinson was her uncle, hut it does not appear from the testimony what was the relation of John to Margrath. The complaint, however, states that he was the husband, which allegation is put in issue by the answer. There is no proof that said John Wilkinson was entitled to the proceeds of the policy of insurance, and plaintiff, the assignee of the policy, could only take the rights of her assignor, the said John Wilkinson. 21 App. Div. 561; 86 Hun, 531; 19 Am. & Eng. Ency. of Law (2d ed.), 96. The answer puts this claim of John Wilkinson in issue, and plaintiff should have given affirmative proof in support of it.

There are other omissions in the evidence which it is not now necessary to consider, in view of the fact that the judgment cannot stand for the reason above stated.

Present: Fbeedman, P. J., Tbuax and Gildebsleeve, JJ.

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