Hirsh v. Auer

• Decision Date: 23 April 1895
• Citation: 40 N.E. 397,146 N.Y. 13
• Parties: HIRSH et al. v. AUER.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 13

40 N.E. 397

HIRSH et al.

v.AUER.

Court of Appeals of New York.

April 23, 1895.

Appeal from supreme court, general term, Fourth department.

Action by Emma L. Hirsh and Minnie Hirsh, by guardian, and others, against Frederick Auer, executor. From a judgment of the general term (29 N. Y. Supp. 917), affirming a judgment for plaintiffs, defendant appeals. Affirmed.

T. K. Fuller, for appellant.

C. L. Stone, for respondents.

BARTLETT, J.

John Hirsh, deceased, the father of the plaintiffs, was, at the time of his death, a member of the society known as the Ancient Order of United Workmen, and held its certificate of insurance upon his life for $2,000, payable to his sister, Clara Auer. The plaintiffs are the children of the insured, and sued the beneficiary to recover the $2,000 collected by her on the certificate of insurance, upon the ground that she agreed with her brother, John Hirsh, that when she received the money on the policy she would expend not to exceed $500 of it in paying his funeral expenses and for a monument, and would divide the $1,500 equally between his children, the plaintiffs. Clara Auer, the beneficiary, was living at the time this action was commenced, but died since the trial, and her executor is now defendant. The cause was tried at the circuit without a jury, and a judgment rendered in favor of plaintiffs for $1,500, interest and costs. The general term affirmed the judgment. Assuming that the evidence introduced by plaintiffs was competent, we cannot say there was legal error in the findings of fact, and the decision of the court below is conclusive as to the facts.

The learned counsel for the defendant has argued with great earnestness and ability several grounds of legal error which he insists must lead to the reversal of this judgment. The first ground relates to the admissibility of evidence which was most important in its bearing upon plaintiffs' contention that the insurance money, to the extent of $1,500, was held by Clara Auer for their benefit. John Hirsh died February 24, 1892, and had in his possession at that time the certificate of insurance. On the 2d of March following two of the plaintiffs, Mary Ann and her sister Emma, called on their aunt, Clara Auer, the beneficiary named in the certificate, and delivered the same to her. At the trial Mary Ann was put upon the stand by plaintiffs' counsel, and against the objection and exception of defendant allowed to testify that when she delivered to Clara Auer the certificate of insurance she informed her that John Hirsh, the insured, had tole witness that he had an understanding with Clara Auer, when he had the policy made in her name, that when he died she was to pay his funeral expenses and erect a monument over his grave not to exceed $500, and divide the balance equally among the plaintiffs, and that Clara Auer said in reply: ‘That is right; that is right, Mamie; that is right. You father told me this. That was the understanding when your father had the policy changed into may name.’ Defendant's counsel insists that under the guise of a conversation with the defendant two of the plaintiffs (Emma having sworn to the same transaction) were permitted to give a conversation with the deceased, which was incompetent, under section 829 of the Code of Civil Procedure. We are of opinion that this evidence was competent as tending to prove an admission of Clara Auer against her interest, she being alive at the time of the trial. This was not an effort on the part of the plaintiffs to show a personal transaction or communication between the witness Mary Ann Hirsh and her father, and consequently section 829 of the Code has no application. It was competent to prove this admission of the defendant Clara Auer, and in order to do so the entire conversation between the witness and defendant was material, as pointing out the nature of the admission. The only legal effect of this evidence...