Tennant v. Dudley

• Decision Date: 29 January 1895
• Citation: 144 N.Y. 504,39 N.E. 644
• Parties: TENNANT v. DUDLEY.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 504

39 N.E. 644

TENNANT

v.DUDLEY.

Court of Appeals of New York.

Jan, 29, 1895.

Appeal from supreme court, general term, Fifth department.

Action by Moses D. Tennant, administrator, etc., of William H. Renouard, deceased, against Eugene Dudley, for the amount received by defendant on a policy issued on the life of plaintiff's intestate. From a judgment and order of the general term (22 N. Y. Supp. 876) affirming a judgment of the special term in plaintiff's favor, and denying a motion for a new trial, defendant appeals. Reversed.

A. C. Wade, for appellant.

S. W. Mason, for respondent.

BARTLETT, J.

This is an appeal from a judgment and order of the general term of the Fifth department affirming the judgment and order below denying a new trial. The plaintiff's intestate, William H. Renouard, in December, 1886, was the owner of a beneficiary certificate or policy of insurance upon his life, issued to him by the Equitable Aid Union, a mutual insurance society, by which the said society agreed to pay to the insured, at the time of his death, the sum of $1,800. Renouard was at this time indebted to the defendant, and procured said certificate or policy to be taken up, and a new one issued, payable to the defendant, who thereafter, and up to the time of Renouard's death, paid all assessments thereon. Renouard died in January, 1889. In June, 1890, the defendant collected the insurance. The plaintiff, as administrator of Renouard's estate, brings this action, alleging that the transfer of the policy of the defendant was merely as collateral security for a debt of $180, and seeks to recover the balance. The defendant alleges the transfer was absolute, and in payment of a debt of $1,300, due him from Renouard, and that, by the terms of his arrangement with his debtor, he was to pay the assessments on the policy, Renouard's funeral expenses, and the charges incurred in bringing his remains to the state of New York for burial, if he died in the West, where he resided at the time the policy was so transferred. These issues were tried before a jury, and resulted in a judgment against the defendant for $1,196 and costs.

The most important question in the case, as bearing on the probability of defendant's version of the contract between him and the intestate, was the amount of the latter's indebtedness to him. It appears that in March, 1889, shortly after the death of Renouard, and more than two years before this action was begun, an effort was made to settle the matters in difference between the defendant and the children of Renouard, growing out of the disputed ownership of the policy of insurance. This agreement was reduced to writing. Defendant was the party of the first part; and children of Renouard, of the second part; and Dean and Hall, of the third part. The...