Gleason v. Northwestern Mutual Life Insurance

Appellate Division of the Supreme Court of New York

Gleason v. Northwestern Mutual Life Insurance

139 A.D. 64, 123 N.Y.S. 471, 1910 N.Y. App. Div. LEXIS 2123

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1910

StatusPublished

This text of 139 A.D. 64 (Gleason v. Northwestern Mutual Life Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gleason v. Northwestern Mutual Life Insurance, 139 A.D. 64, 123 N.Y.S. 471, 1910 N.Y. App. Div. LEXIS 2123 (N.Y. Ct. App. 1910).

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Scott, J.:

The defendant appeals from a judgment entered upon a directed verdict. The action is upon a policy of insurance, dated September 3, 1891, issued upon the life of Oliff F. Harrison, and payable to his executors, administrators and assigns. It was dated at Milwaukee, Wis., and was by its terms payable at defendant’s office in that city. Oliff F. Harrison was a resident of Rutland, Vt., when the policy was negotiated for and delivered some time between September 3 and 12, 1891. On said September 12, 1891, Harrison executed a written assignment of said policy to the plaintiff, who was also a resident of • Rutland. The assignment which, as it is stipulated, was made without consideration and as a gift, was executed and delivered in Rutland, where it remained until after Harrison’s death on October 11, 1903, both Harrison and plaintiff continuing to be residents of Rutland until his death. Harrison paid all the premiums except the last one, which plaintiff paid because Harrison was too ill to attend to business, and she feared that the policy might lapse. The day after Harrison died plaintiff moved to the State of New York, where she has since resided. She left the policy and assignment, for something over a year, in the hands of a Vermont attorney, who, however, took no action to,collect it. On October 22, 1903, Percival W. Clement was appointed in Vermont administrator of Harrison’s estate, and on November 7, 1903, as such administrator, he served proof of Harrison’s death upon defendant. Plaintiff relies upon this proof of death, having served none herself. On November 18, 1904, Clement, as administrator, [66]*66began an action against defendant in Vermont to recover the amount of the policy. Defendant appeared and set up the assign-' ment of the policy to plaintiff. . On March 2, 1905, defendant served upon plaintiff personally in New York- notice of the pendency of the action in Vermont, with , an offer to permit her -to assume- the defense thereof. She made no reply to this, but on March.11, 1905, formally notified defendant that she claimed to be entitled to receive the amount of the policy, and on March 23, 1905, she commenced this action.

On October 6,1905, Harrison’s administrator in Vermont recovered judgment in that State. This case was then on the calendar and about to be reached for trial, and defendant moved for leave to set up the Vermont judgment as a bar to this action. The motion was denied and judgment went for plaintiff. On appeal, the order and judgment were reversed, and the motion for leave to serve a supplemental complaint setting up the Vermont judgment in bar was granted. (113 App. Div. 186.) The plaintiff thereupon demurred to the defense thus allowed to be set up, upon the ground that it was insufficient in law upon the face thereof.' The demurrer was overruled at Special Term, and the judgment' was affirmed here without opinion (118 App. Div. 906) and in the Court of Appeals, with an opinion by O’Brien, J. (189 N. Y. 100). The Vermont judgment in the meantime had been reversed,

* and plaintiff, after thé decision of the Court of Appeals,† withdrew her demurrer and replied, setting up such reversal. The action in Vermont again went to trial and again resulted in a judgment for the administrator, which was affirmed on appeal,j and subsequently paid by defendant, who then served a second supplemental answer setting up the second judgment, its affirmance and its payment. The sole question in this case is whether the final judgment in Vermont constitutes a bar to a recovery by the plaintiff here for the same debt upon the same policy. This question was discussed witli much care upon the first appeal to this court, and a decided différence of opinion was found to-exist. We do not consider that it is necessary or useful to renew that discussion here, for as we regard it the ques[67]*67tion has been definitely decided by the Court of Appeals on the appeal from the judgment overruling plaintiff’s demurrer. The one and only question presented on that appeal was whether or not defendant’s answer setting up the Vermont judgment in bar of this action was sufficient in law upon the face thereof, and the court decided that it was. The defense in the present case is a second judgment in the same action in Vermont, and, as the allegations respecting it were fully proven, we have presented precisely the same question which was decided in defendant’s favor by the Court of Appeals. It is true that none of the other judges of that court concurred in the precise grounds stated by Judge O’Brien for his opinion, but what we are concerned with is not the.opinion,'but the decision. In that all of the judges, save one, concurred, and that decision was that the answer setting up the recovery of the judgment in Vermont was sufficient in law. That decision constitutes the law of this case and requires a reversal of the present judgment.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the. event.

McLaughlin and Clarke, JJ., concurred; Dowling, J., dissented.

See Harrison’s Admr. v. Northwestern Mut. Life Ins. Co. (78 Vt. 473).— [Rep.

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Scott, J.:

The defendant appeals from a judgment entered upon a directed verdict. The action is upon a policy of insurance, dated September 3, 1891, issued upon the life of Oliff F. Harrison, and payable to his executors, administrators and assigns. It was dated at Milwaukee, Wis., and was by its terms payable at defendant’s office in that city. Oliff F. Harrison was a resident of Rutland, Vt., when the policy was negotiated for and delivered some time between September 3 and 12, 1891. On said September 12, 1891, Harrison executed a written assignment of said policy to the plaintiff, who was also a resident of • Rutland. The assignment which, as it is stipulated, was made without consideration and as a gift, was executed and delivered in Rutland, where it remained until after Harrison’s death on October 11, 1903, both Harrison and plaintiff continuing to be residents of Rutland until his death. Harrison paid all the premiums except the last one, which plaintiff paid because Harrison was too ill to attend to business, and she feared that the policy might lapse. The day after Harrison died plaintiff moved to the State of New York, where she has since resided. She left the policy and assignment, for something over a year, in the hands of a Vermont attorney, who, however, took no action to,collect it. On October 22, 1903, Percival W. Clement was appointed in Vermont administrator of Harrison’s estate, and on November 7, 1903, as such administrator, he served proof of Harrison’s death upon defendant. Plaintiff relies upon this proof of death, having served none herself. On November 18, 1904, Clement, as administrator, [66]*66began an action against defendant in Vermont to recover the amount of the policy. Defendant appeared and set up the assign-' ment of the policy to plaintiff. . On March 2, 1905, defendant served upon plaintiff personally in New York- notice of the pendency of the action in Vermont, with , an offer to permit her -to assume- the defense thereof. She made no reply to this, but on March.11, 1905, formally notified defendant that she claimed to be entitled to receive the amount of the policy, and on March 23, 1905, she commenced this action.

On October 6,1905, Harrison’s administrator in Vermont recovered judgment in that State. This case was then on the calendar and about to be reached for trial, and defendant moved for leave to set up the Vermont judgment as a bar to this action. The motion was denied and judgment went for plaintiff. On appeal, the order and judgment were reversed, and the motion for leave to serve a supplemental complaint setting up the Vermont judgment in bar was granted. (113 App. Div. 186.) The plaintiff thereupon demurred to the defense thus allowed to be set up, upon the ground that it was insufficient in law upon the face thereof.' The demurrer was overruled at Special Term, and the judgment' was affirmed here without opinion (118 App. Div. 906) and in the Court of Appeals, with an opinion by O’Brien, J. (189 N. Y. 100). The Vermont judgment in the meantime had been reversed,

* and plaintiff, after thé decision of the Court of Appeals,† withdrew her demurrer and replied, setting up such reversal. The action in Vermont again went to trial and again resulted in a judgment for the administrator, which was affirmed on appeal,j and subsequently paid by defendant, who then served a second supplemental answer setting up the second judgment, its affirmance and its payment. The sole question in this case is whether the final judgment in Vermont constitutes a bar to a recovery by the plaintiff here for the same debt upon the same policy. This question was discussed witli much care upon the first appeal to this court, and a decided différence of opinion was found to-exist. We do not consider that it is necessary or useful to renew that discussion here, for as we regard it the ques[67]*67tion has been definitely decided by the Court of Appeals on the appeal from the judgment overruling plaintiff’s demurrer. The one and only question presented on that appeal was whether or not defendant’s answer setting up the Vermont judgment in bar of this action was sufficient in law upon the face thereof, and the court decided that it was. The defense in the present case is a second judgment in the same action in Vermont, and, as the allegations respecting it were fully proven, we have presented precisely the same question which was decided in defendant’s favor by the Court of Appeals. It is true that none of the other judges of that court concurred in the precise grounds stated by Judge O’Brien for his opinion, but what we are concerned with is not the.opinion,'but the decision. In that all of the judges, save one, concurred, and that decision was that the answer setting up the recovery of the judgment in Vermont was sufficient in law. That decision constitutes the law of this case and requires a reversal of the present judgment.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the. event.

McLaughlin and Clarke, JJ., concurred; Dowling, J., dissented.

See Harrison’s Admr. v. Northwestern Mut. Life Ins. Co. (78 Vt. 473).— [Rep.

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139 A.D. 64, 123 N.Y.S. 471, 1910 N.Y. App. Div. LEXIS 2123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gleason-v-northwestern-mutual-life-insurance-nyappdiv-1910.

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