King v. Vleck

• Decision Date: 24 April 1888
• Citation: 16 N.E. 547,109 N.Y. 363
• Parties: KING v. VAN VLECK.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 363

16 N.E. 547

KING

v.VAN VLECK.¹

Court of Appeals of New York.

April 24, 1888.

Appeal from general term, supreme court, First department.

Action by Agnes King against George H. Van Vleck for money had and received. Judgment for plaintiff, and defendant appeals.

Williams & Potter, for appellant.

Geo. M. Osgoodby, for respondent.

EARL, J.

The material facts as established by the evidence in this action are as follows: On the 13th day of August, 1868, Sidney B. King procured from the Connecticut Life Insurance Company a policy of insurance upon his life for $2,000, payable upon the occurrence of his death to his executors or administrators. On the 18th day of March, 1879, King mortgaged the policy to the defendant to secure the payment of $500, and interest in one year from the date of the mortgage. King died on the 22d of October, 1882, leaving a will by which he bequeathed to the plaintiff, his wife, and to his mother each a one-fourth interest in the life policy, and the other half of the policy he bequeathed to one Kent whom he appointed executor of his will. The policy remained in force at his death, and the $500 for which the defendant held the policy as security had not been paid. Proper proofs were furnished to the insurance company of the death of King, and on the 27th day of February, 1883, it gave its draft for the sum due on the policy, to-wit, $1,939.43, payable to the order of Kent as executor and the defendant as assignee. That draft was indorsed by the payees named therein, and the amount thereof was paid to the defendant. The executor and the mother of King assigned their interest in the policy, and the money paid thereon, to the plaintiff. She then demanded the money, or some portion thereof, from the defendant, and he declined to pay her any of it. She then commenced this action, in which, among other things, she alleged that the indebtedness from her husband to the defendant which had been secured by the assignment of the policy was paid in the life-time of her husband; and she claimed from the defendant the sum of $2,000, alleged to have been received by him from the insurance company, and demanded judgment for that sum, with interest and costs. The defendant, in his answer, admitted that the policy was delivered to him as collateral security for the payment of $500 and interest; and that he had received from the insurance company, in payment and discharge of the policy, the sum of $1,939.43; and he alleged that before the death of King, in consideration of the sum of $45 paid by him, King waived, released, and abandoned to him all his right, title, and interest in and to the policy of insurance, and to all sums that might be realized thereon, and that thereby he (the defendant) became the absolute owner of the policy. He also alleged that he had paid for premiums upon the policy $74.41, and $250 expenses of procuring payment upon the policy from the insurance company. Upon the trial of the action, no evidence whatever was given showing that the testator, in consideration of the sum of $45, or any other sum, had released or assigned his interest in the policy to the defendant. The case was submitted to the jury, and they rendered a verdict in favor of the plaintiff for $1,270.10, thus showing that they allowed to the defendant the indebtedness of $500, and interest thereon, and in the neighborhood of $200 besides.

Upon the undisputed facts, it is very obvious that the plaintiff was entitled to recover. By...