#### Bernard Babrowsky, as Executor, etc., of Millie Greenbaum, Deceased, Respondent, *v.*The United States Grand Lodge of The Order Brith Abraham, Appellant.

Second Department,

December 30, 1908.

Principal and agent —power coupled with interest — death of principal — revocation — evidence.

Where a third person at the request of the beneficiary of an insurance policy then due has paid out on her behalf moneys in excess of the amount of the policy pursuant to an agreement that he should collect the policy and retain the amount expended, and the beneficiary thereafter gives him a written power of attorney authorizing him to receive the amount of the policy and receipt therefor on her behalf, there is a virtual assignment of the fund and the agent has a power coupled with an interest which survives the death of the principal.

Hence, when the insurer having paid to the agent after the death of the principal . is sued by her representative to recover the amount of the policy, it may show the oral agreement pursuant to which the power of attorney was given, where it is properly pleaded as a defense.

Appeal by the defendant, The United States Grand Lodge of The Order Brith Abraham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of December, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Term.

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      *Henry M. Goldfogle [Charles L. Cohn*with him. on the brief], for the appellant.

*Frank A.*Bennett, for the respondent.

Miller, J.:

In his lifetime one Louis Greenbaum was a member of a fraternal benefit organization. Upon his death his widow became entitled to the sum of $500, to be collected by assessments upon the members of said organization, pursuant to its endowment laws. Thereafter, -and on the 21st day of July, 1905, she gave a written power of attorney to one Maurice Whitebone, authorizing him to receive said sum and to receipt therefor on her behalf. After her death, and on December 9, 1905, the defendant paid said sum of $500 to said Whitebone. This action is brought by her executor to recover said sum.

The defendant averred that, after the death of said Greenbaum, the said Whitebone paid out various sums of money, amounting to more than $500, at the request of the said widow and pursuant to her promise to repay the same out of said endowment moneys, and that said power of attorney was given pursuant to an agreement that Whitebone should collect said moneys and retain unto himself the sums thus expended. The defendant undertook to establish said averment by proof of the verbal agreement pursuant to which the power of attorney was given, but the evidence was excluded.

We must assume that the evidence excluded would have tended to prove the truth of the averment. It was excluded on the ground that the writing could not be varied or enlarged by proof of the anterior verbal arrangements. Two questions are presented upon this appeal: (1) Was the power of attorney, assuming it to have been given for the purpose and pursuant to the agreement as averred, revoked by the death of the creator of the power ? (2) Was it competent to show the verbal arrangement pursuant to which it was given *1*

(1) Assuming the power of attorney to have been given as security for the payment of money and pursuant to an agreement that the money collected under it should be retained by the agent to apply on the debt owing him by the creator of the power, we think jt was a power, coupled with an interest which survived the death *697of the creator thereof. The transaction was, in effect, an assigninent of the fund, collected by the defendant pursuant to its endowment laws for the benefit of the creator of the power. The distinction is made in *Hunt*v. *Rousmanier*(8 Wheat. 174) between an interest in the subject on which the power is to be exercised and an interest in that which is produced by the exercise of the power, it being held that, in the former case, the power survives the death of the creator, but that, in the latter case, it does not, though given for a consideration, the reason being that an act cannot be performed for and in the name .of a person after his death. In that case the subject upon which the power was to be exercised was a vessel, and the court held that, as the agent was given no interest in the vessel itself, but only an interest in the proceeds to be realized from the sale of the vessel, he could not sell the vessel for and in the name of his principal after the lattei’’s death. How in this case the subject was the fund which the agent was authorized to receive, and the transaction was, as we have said, a virtual assignment of that fund. We do not understand the plaintiff to question the proposition that, if the power was coupled with an interest in the subject upon which it was to be exercised, it survived the death of the creator. (See on this head, in addition to the case cited supra, *Knapp*v. *Alvord,*10 Paige, 205; *Terwilliger*v. *Ontario, C.*& *S. R. R. Co.,*149 N. Y. 86; *Stevens*v. *Sessa,*50 App. Div. 547; *Hoffmann*v. *Union Dime Savings Institution,*95 id. 329; 109 id. 24.)

(2) We think it was competent to show the agreement pursuant to which the power of attorney was given. The written instrument does not purport to express the contract between the parties. If the contract was as claimed by the defendant, the writing was given in part performance thereof, and the rule excluding evidence of the verbal an-angements anterior to the written contract does not apply. The case of *Hoffmann*v. *Union Dime Savings Institution (supra)*is directly in point on this head. (See, also, *Thomas*v. *Scutt,*127 N. Y. 133.)

The judgment is reversed

Woodward, Hooker, Gaynor and High, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.