(90 Hun, 521.)

#### GROGAN v. UNITED STATES INDUSTRIAL INS. CO.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Life Insurance—Assignment of Policy.

An instrument reciting that “I, the * * * person insured, * * * hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the benefit specified in said policy to M., and the receipt signed by said person shall be conclusive evidence that such sum has been paid. * * * and that all claims under this policy have been fully satisfied,” but that “nothing herein is to vary * * * any of the provisions of said policy,” is such an assignment of a life policy payable to the executors or adminis*688trators of the assured as will authorize M. to sue thereon in' her own name.

2. Secondary Evidence—When Admissible.

Where the subscribing witness to a written assignment of a life policy is not within the jurisdiction of the court at the time action is brought on the policy, the execution of the assignment may be shown by secondary proof.

3. Insurance—Proof of Loss—Waiver of Objections.

A life insurance company, by retaining the proofs of death furnished by plaintiff until the same are produced on the trial, waives objections to their form and sufficiency.

4. Trial—Direction of Verdict.

Where neither party asks to go to the jury, the court is authorized to-decide the questions of fact, and direct a verdict.

Appeal from Albany county court.

Action by Margaret Grogan against the United States Industrial Insurance Company. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTKAM and HERRICK, JJ.

Hun & Johnston (Russell M. Johnston, of counsel), for appellant.

John Scanlan (Mark Cohn, of counsel), for respondent.

MAYHAM, P. J.

This action was prosecuted by the plaintiff, as alleged assignee of a life policy of insurance issued on the life of one Peter Grogan for $214. The policy was made payable to the executors or administrators of the assured, and the first point made by appellant, on this appeal, is that there was no valid assignment of the policy by the assured to the plaintiff. The instrument under which this transfer is claimed to have been made reads as follows:

> “The United States Industrial Insurance Co.

> “Home Office, Newark, N. J., March 4th, 1891. “I, the undersigned, the person making application for and insured under policy No. 175,792 in the above-named company, hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the benefit specified in said policy to Margaret Grogan, and the receipt signed by said person shall be conclusive evidence that such sum has been paid to the person entitled thereto, and that all claims under this policy have been fully satisfied; but it is mutually agreed and understood that nothing herein is to vary in any manner any of the provisions of said policy, and that company may, at its option, pay said benefit according to the agreement in said second condition mentioned, anything herein to the contrary notwithstanding.

> “[Signed] Peter Grogan.

> “Witness: C. F. Applegate.”

> Indorsed: “Albany County, N. Y., Clerk’s Office. Filed.March 13th, 1895.”

It is contended by the appellant that this does not constitute a valid assignment of this policy to the plaintiff, so as to authorize a recovery in her name. This instrument seems to have been drawn and witnessed by the agent of the company acting as superintendent or manager of the same, and, while it is not in the technical form of an assignment, we think it clearly transferred to the plaintiff the right to this money, in case the company ivas liable to pay the same, and gave her such an interest in it and such authority over it as would, as against the defendant, authorize her to maintain this action; and we see nothing in the case of Sulz v. Association, 145 *689N. Y. 563, 40 N. E. 242, *to*wMch we are referred by the learned counsel for the appellant, which supports the contrary contention.

While the instrument, as is contended by the learned counsel,, might have been revoked by Peter Grogan in his lifetime, on the ground of infancy, on arriving at his majority, had such an event happened, yet I fail to see how the defendant in this action can avail, itself of that fact as a defense against the person who was clearly-authorized by the assured by this instrument to receive the money and give ample and complete release and discharge for the same. It may be assumed, as is doubtless true, that Margaret Grogan, this plaintiff, had no insurable interest in the life of Peter Grogan, and that a policy on his life issued directly to Margaret would have been void, as a wager policy, yet there was nothing in her condition or relation that would prevent her from taking an assignment of the-policy from the person in whose name and for the benefit of whose-estate it was issued. And there is nothing in this case tending to< establish the fact that this policy was taken out in the name of the assured for the benefit of the plaintiff to avoid the legal condemnation that exists against wager policies.

It is also insisted by the appellant that, assuming that the instrument above quoted was an assignment to the plaintiff, yet it was not proved, so as to make it admissible as evidence. There is some evidence tending to show that C. F. Applegate, who witnessed this assignment, was not at the time of this trial in the jurisdiction of this state; and we think it was competent for the trial judge to receive secondary proof of the execution (People v. Rowland, 5 Barb. 449-451; Jackson v. Cody, 9 Cow. 149), and that it was therefore proper to allow the proof either of his signature or of the original signing by the party, and, that the execution of this alleged, assignment was sufficiently proved.

It is also contended by the appellant that there were not sufficient" proofs of death in this case to authorize a recovery. There would' be much force in that contention, had not the defendant estopped itself from raising that question by the retention of the proofs of' death which were furnished by the plaintiff. It is true, as contended by the learned counsel, that some of the proofs relied upon were not sufficiently authenticated to allow them, as an original proposition, to be introduced in evidence; but they were relied upon-by the plaintiff, served upon the defendant, and manifestly received-by it, because, on the trial, they were produced upon notice by the-defendant’s attorney; and we think, within the adjudged cases, that by their retention from the time they were received until they were delivered, on notice to produce them on the trial, the defendant cannot now be heard to say they were insufficient. In Jones v. Insurance Co., 117 N. Y. 103, 22 N. E. 578, the plaintiff served proofs of loss, which were retained by the insurance company without objection for 45 days. It was held that objection to their sufficiency and form was waived by the delay. See, also, McNally v. Insurance Co., 137 N. Y. 389, 33 N. E. 475; Trippe v. Society, 140 N. Y. 23, 35 N. E. 316.

*690On the trial of this case the learned judge directed a verdict for the plaintiff for the amount of $204. Neither party seemed to have asked to go to the jury, and the court was therefore authorized to decide the question of fact in the case; and if there was any evidence to sustain his direction, it will not be disturbed on appeal. Fogarty v. Hook, 84 Hun, 165, 32 N. Y. Supp. 555. ' We think there was sufficient evidence to justify the conclusion reached by the learned judge, and that the judgment must be affirmed.

Judgment affirmed, with costs. All concur.