#### Morrison, Public Administrator, *v.*Mutual Life Ins. Co.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Executors and Administrators—Life Insurance Policy.

In an action on a life insurance policy, it appeared that the assured died a resident of Maine, and an administrator was there appointed, who obtained possession of the policy, and recovered upon it. Plaintiff was appointed administrator of the assured in New York, and sued for the amount of the policy. *Held,*the fact that he never had possession of the policy is fatal to a recovery.

Appeal from special term, New York county.

Suit by Richard J. Morrison, as public administrator of the goods, chattels, and credits of Joseph E. Miller, deceased, against the Mutual Life Insurance Company of the city of New York. Trial by the court without a jury, and judgment for defendant, from which plaintiff appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*O. V. Hibbard,*for appellant. *Julian T. Davies,*for respondent.

Van Brunt, P. J.

In March, 1873, the defendant, at the city of New York, issued to one Joseph E. Miller a policy of insurance upon his life. In September, 1886, said Miller died in the state of Massachusetts, being at the time of his death a resident of the state of Maine, and was at the time of his death in possession of said policy. In November, 1886, one Chase was duly appointed the administrator of the estate of said Miller in the state of Maine, and duly received said policy, and remained in possession thereof until its surrender, as hereinafter mentioned, and served upon the defendant notice and due proof of the death of said Miller, and demanded payment of the amount of said policy, and in November, 1887, began an action against the defendants for the recovery of the amount due on said policy. That service in said action was made in the state of Maine upon an agent of the defendants appointed pursuant to the laws of said state. In May, 1887, the plaintiff was appointed in New York as administrator of the estate of said Miller, and in June payments of the amount due on said policy was demanded by the plaintiff. In August this action was begun to recover said amount. In October, 1887, a judgment was rendered in the Maine action, and execution issued therein; and on the 19th of that month the Maine judgment was paid and satisfied, and the policy surrendered by said Chase. Upon the trial of this action the complaint was dismissed on the merits, and judgment thereupon entered for the defendants, from which this appeal was taken.

It is claimed by the plaintiff that the case of *Holyoke*v. *Insurance Co., 22**446Hun, 75, affirmed without opinion, 84 N. Y. 648, sustains his: right of recovery in this action. An examination of that case, however, we think, shows that it is perhaps as direct authority in support of the judgment herein. In the case of *Holyoke*v. *Insurance Co.,*one Perkins, a resident of Maine, had assigned a policy of insurance upon his life to one Holyoke, a resident of this state. Holyoke having died, letters testamentary were issued to the plaintiff, and subsequently letters of administration with the will annexed, of the estate of Holyoke, were issued in Maine to one Bonney. The plaintiff received the assignment of the policy, but the policy itself was in Maine, and received by Bonney as such administrator. Upon being paid the amount of the policy, Bonney assigned the same to another person residing in Maine, and the action was brought by the plaintiff to recover the amount of the policy in the courts of this state; and the court held that, because the policy was in Maine, it there formed part of the property of the testator, and belonged to the administrator in Maine. The policy, never having been in this state, could not, under the principle of the foregoing case, form any part of the assets of the deceased to which the plaintiff acquired title. But it is urged that, the debtor being here, and the administrator in Maine not being able to sue the debtor, therefore the other principle announced in the case cited—that, if a debtor pays to an administrator of his creditor appointed in the state where he resides, he cannot be sued elsewhere—applies. An examination of the case shows that the ground upon which such a payment is protected is because the debtor cannot be compelled to pay elsewhere, but the case also holds that such a payment will not be protected if there exists a written contract creating the indebtedness which is not held by the party claiming payment, but it is within another jurisdiction. If the plaintiff had possession of the policy in question, then his case would have been identical with that of *Holyoke*v. *Insurance Co.,*but the want of such possession is fatal to his action. The following *cases—Insurance Co.*v. *Woodworth,*111 U. S. 138, 4 Sup. Ct. Rep. 364; *Holmes*v. *Remsen,*4 Johns. Ch. 460; *Embree*v. *Hanna,*5 Johns. 101—support the view taken. The plaintiff, never having obtained the title to the policy in question, or the right to the possession thereof, cannot maintain this action. The judgment appealed from should be affirmed, with costs.

All concur.