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Page Weston Paper & Mfg. Co., National Candy Willis, Jones V. (Ohio)..

. 1127 Mould & Mfg. Co. v. (Ohio).

.1130 Willis, Metropolitan Life Ins. Co. v, (Ind. Westport, Gifford v. (Mass.). .1042 App.)

560 West Side Brewery Co., Kraft v. (III.).... 372 | Wilson v. Wilson (Ohio).

.1135 Wetterer, Belledin v. (Ohio). 1119 Wilson, Meyer v. (Ind. Sup.)

748 Weyrick, Town of Syracuse v. (Ind. App.) 559 Wilson, Sharp v. (Ohio)

.1131 Wheeler v. Eckert (N. Y.).

.1115 Winehill v. Consolidated Gas Co. of New Wheeling & L. E. R. Co. v. Suhrwiar

York (N. Y.)

.1116 (Ohio)

.1134 | Winslow Skate Mfg. Co., Finnegan v. Whelen, Wood v. (N. Y.) 1116 (Mass.)

192 Whitacre v. Whitacre (Ohio) .1134 Winter, Jeffrey v. (Mass.).

282 Whitacre, Eltzroth v. (Ohio).

.1124 Wisconsin Cent. R. Co., People v. (Ill.).... SO White v. Old Colony St. R. Co. (Mass.). . 510 Wise, Collins v. (Mass.)

657 White v. State (Ind. App.)

554 Witten, National Coal Co. v. (Ohio)..1130 White v. William H. Perry Co. (Mass.). . 512 Wittkop, Thompson v. (N. Y.)

. 1081 White, Brown v. (Ill.).

833 Wolf v. New Bedford Cordage Co. (Mass.) 222 White, Kirk v., two cases (Ohio) .1127 | Wolf, People v. (N. Y.)...

592 Whitesell v. Study (Ind. App.). .1010 Wolfe, Enos v. (Ohio).

. 1124 Whitman v. Brush (Ohio).

.1134 Wolff, Board of Com'rs of La Porte County Whitman v. Carter (Ohio) .1135 v. (Ind. Sup.).

247 Whitney, Birmingham Trust & Savings Co. Wolff, New American Oil & Mining Co. v. P. (N. Y.).. . 1089 (Ind. Sup.)..

255 Widger v. Baxter (Mass.) 509 Wood v. Whelen (N. Y.).

1116 Wiggin v. Holbrook (Mass.). 463 | Woods, Dyer v. (Ind. Sup.).

624 Wild, Board of Com’rs of Newton County Wooler, Knealing.v. (Ohio)

.1127 5. (Ind. App.).

256 Woolford v. Phenix Ins. Co. (Mass.) 722 Wiler, Logan Natural Gas & Fuel Co. v. Wormser V. Metropolitan St. R. Co. (N. (Ohio)

.1128 Y.) Wilke, Heimann v. (III.).

378 Worthington Co. v. Schwan (Ohio). ..1124 Wilkerson, Capital Nat. Bank V. (Ind. Wright, Spitzer v. (Ind. App.)..

261 App.)

258 Wilkofsky v. Rowland (Ohio). . 1135 Yakey v. Leich (Ind. App.)...

926 Willard, Swygart v. (Ind. Sup.)

755 | Yellow Pine Co., McWilliams v. (N. Y.)..1100 Willett, Pullman Co. v. (Ohio) .1131 Young v. Bowron (Ohio)...

1135 William H. Perry Co., White v. (Mass.). .. 512 Young, Britton v. (Ind. App.).

327 Williams v. Board of Canvassers of Essex Youngs v. Youngs (N. Y.).

...1117 County (N. Y.).

.1116 Youngstown Mfg. Co. v. Snyder (Ohio)..1135 Williams v. Central R. Co. of New Jersey (N. Y.). 1116 Zabor, People v. (N. Y.).

17 Williams v. Hoffman (Ind. App.).

440 | Zehner, Terre Haute &' I. R. Co. v. (Ind. Williams v. Port Chester, two cases (N. Sup.)

169 Y.) .1116 Zeigler v. Dailey (Ind. App.).

819 Williams, Clark v. (Mass.).

723 Zeithaml v. Greeley Bros. Co. (Ohio) 1135 Williams, Snow v. (Mass.) . 1118 Ziegler, In re (N. Y.).

.1117 Williams, Welever v. (Ohio). .1134 Zimmerman, Hinkle v. (N. Y.)

. 1080 Williamson v. McCollum (N. Y.) .1116 Zimmermann, Bossert v. (N. Y.)

1089 Willis, Holcomb v. (Ohio). .1126 | Zuelly v. Casper (Ind. App.)...

646

.1036

REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.)

Chicago, I. & L. R. Co. v. Bryan (Ind. App.) 75 Grand Lodge A 0. U. W. v. Barwe (Ind. App.) N. E. 678.

75 N. E. 971. Cincinnati, R. & M. R. Co. v. Troutman (Ind. App.) 75 N. E. 277.

Marion Trust Co. v. Indianapolis (Ind. App.) Cleveland, C., C. & St. L. R. Co. v. Patterson 75 N. E. 834, 836. (Ind. App.) 75 N. E. 857.

Warner v. Marshall (Ind. Sup.) 75 N. E. 582.

See End of Index for Tables of Northeastern Cases in State Reports.

76 N.E.

(xx)+

THE

NORTHEASTERN REPORTER.

VOLUME 76.

August 2, 1887, George N. Cuyler assigned CUYLER V. WALLACE et al.

and delivered said policy of insurance to his (Court of Appeals of New York. Dec. 15, 1905.) father, George Cuyler, and a duplicate of said 1. INSURANCE-ASSIGNMENT OF LIFE POLICY assignment was thereafter, and on or about -REASSIGNMENT-EVIDENCE.

February 18, 1891, duly filed in the office of Evidence held insufficient to sustain pre

the Connecticut Mutual Life Insurance Comsumption of reassignment of a life insurance policy assigped by the insured to his father, but

pany. (4) George Cuyler died on or about found in the possession of another, without November 7, 1893, at the city of Albany, evidence as to the time when or the manner in leaving a last will and testament, which #bich such other obtained repossession. 2. SAJE-EVIDENCE.

was duly admitted to probate by the surroWhere a policy was assigned by a son to

gate of Albany county on the 11th day of his father, a contention that said policy, show- July, 1894, and the defendants Matthew J. ing upon its face that the son was the person Wallace and Henry S. McCall were duly insured, was reassignable and transferable to him by mere delivery without any writing, and

appointed as executors of said last will and when found in the possession of the son after

testament and duly qualified as such, and the death of the father will be presumed to have ever since that time have been and now are been assigned for a valuable consideration, cannot be sustained as, in the absence of a written

acting as such. (5) After the assignment of assignment, the burden is on the holder to

said policy of insurance and the filing of a sbow that he is a bona fide holder and the duplicate thereof with the insurance commanner in which he obtained the policy.

pany, and previous to the death of George (Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, 88 484, 1648.]

Cuyler, plaintiff's intestate, George N. Cuy

ler was in possession of said policy of inAppeal from Supreme Court, Appellate

surance and continued in possession thereof Division, Third Department.

up to the time of his death, claiming to be Action by Emma F. Cuyler, administratrix

the owner thereof; and the defendants of George N. Cuyler, against Matthew J.

Henry S. McCall and Matthew J. Wallace, Wallace and others, executors of George Cuy

as executors of George Cuyler, deceased, ler. From a judgment of the Appellate

never had possession of said policy of inDivision (101 App. Div. 207, 91 N. Y. Supp.

surance. (6) The defendants, as executors 690), affirming a judgment for plaintiff, de

of said George Cuyler, deceased, filed an fendants appeal. Reversed.

inventory of said estate in the office of the The following are the stipulated facts: surrogate of Albany county, on or about the "The parties to the above-entitled action 11th day of October, 1894, but no claim is hereby stipulate and agree upon the follow- therein made to the policy of insurance in ing facts in this case: (1) That on or about question. (7) The defendants, as such exMay 7, 1867, the Connecticut Mutual Life ecutors, rendered a final account of their Insurance Company issued and delivered to proceedings in the year 1895, but no claim George N. Cuyler its policy of insurance on is made in the said final account of their the life of George N. Cuyler, in and by which proceedings to the policy of insurance in policy and contract of insurance the said question. (8) Objections were filed to the company did insure the life of said George account of the defendants as executors in N. Cuyler in the sum of $2,500, and did that proceeding by and on behalf of Charles promise and agree to pay the said sum of M. Cuyler and Ida P. Cuyler, children and $2,500 to the legal representatives of the said next of kin of their testator; one being that George N. Cuyler within 90 days after satis- the said executors had failed to account or factory proofs of the death of the said charge themselves with the said policy of George N. Cuyler had been furnished to insurance and claiming that it belonged to said company. (2) That said policy of in- the estate of George Cuyler. (9) Upon that surance became and was a fully paid up objection testimony was taken before the policy of insurance long before the death of surrogate of Albany county. George N. Cuysaid George N. Cuyler. (3) On or about ler was subpænaed and sworn as a witness, was required to and did produce said policy death of George Cuyler, the father, George of insurance, and did then and there tes- N. Cuyler, the son, was in possession of the tify that he was the owner of and in pos- policy of insurance and continued in possessession of said policy of insurance. (10) sion thereof up to the time of his death, That thereafter, and on or about February claiming it as owner. The defendants ren18, 1896, a decree was made by the surrogate dered a final account of their proceedings in of Albany county, in the said final judicial the year 1895, but no claim was made by settlement of the accounts of the defendants them to said policy of insurance in the inas executors of the last will and testament ventory or account. Two children of the tesof George Cuyler, deceased, and duly filed in

76 N.E.-1

tator filed objections to this account; one reasaid surrogate's office on that day, in and

son being that the executors failed to charge by which it was provided, among other

themselves with the policy. Testimony was things, that the defendants herein retain the taken under these objections before the Sursum of $500 for the expenses of prosecuting

rogate's Court of Albany county, and George an action against George N. Cuyler for the

N. Cuyler was subpænaed as a witness. He recovery of said policy of insurance. (11)

was required to produce and did produce the That said George N. Cuyler died intestate on

policy, and testified that he was the owner of the 22d day of August, 1903, at the city of

and in possession of the same. In February, Albany, where he was born and always

1896, a final decree was entered in this proresided. (12) That the plaintiff herein was

ceeding. The surrogate did not pass upon the duly appointed as the administratrix of his

question of the ownership of the policy, but estate by the surrogate of Albany county,

inserted a provision in the decree providing on or about September 15, 1903, and that

that the defendants should retain the sum of she duly qualified, and ever since that time

$500 for the expenses of prosecuting an action has been and now is acting as such adminis

against George N. Cuyler for the recovery of tratrix. (13) That the said defendants never

the policy of insurance. In August, 1903, attempted, by action or any other proceed

George N. Cuyler died intestate in the city ing, to recover said policy of insurance from

of Albany, and the plaintiff was duly apGeorge N. Cuyler in his lifetime, or since

pointed as the administratrix of his estate.

The defendants thereupon made a claim upon his death, except that the said defendants

the insurance company for the moneys due did make a claim to the moneys due on said

on the policy. After the death of George N. policy of insurance from said Connecticut

Cuyler his administratrix brought an action Mutual Life Insurance Company after the

against the insurance company to recover on death of said George N. Cuyler. (14) That George N. Cuyler resided with his wife, the

the policy, and on motion of the company the

defendants were impleaded and the amount plaintiff herein, for many years prior to the

due on the policy was paid into court. death of George Cuyler, at 131 Chestnut

The trial court found as conclusions of street, in the city of Albany, N. Y., and that

law: First, that the said George N. Cuyler said George Cuyler resided on Clinton ave

was at the time of his death the owner and nue, in said city of Albany. (15) Annexed

holder of said policy of life insurance in the hereto is a copy of the will of said George

Connecticut Mutual Life Insurance ComCuyler.” Dated April 23, 1904, and signed

pany ; second, that the plaintiff is entitled by respective counsel. The stipulation con

to judgment for the moneys due upon said tains a copy of the will of George Cuyler, policy of life insurance described in the fore the father, and will be found in the record.

going findings of fact, and that she should Peter A. Delaney, for appellants. Mark have judgment therefor against the defend. Cohn, for respondent.

ants, together with the costs of this action,

to be paid out of the estate and not by the BARTLETT, J. (after stating the facts). defendants personally. The learned AppelThe facts are stipulated, and the sole ques- late Division in a brief memorandum distion of law presented is whether the stipu- poses of the question of law as follows: lated facts sustain the conclusions. In May, "The policy having been once shown to be 1867, the Connecticut Mutual Life Insurance legally owned by George Cuyler, there is a Company issued and delivered to George N. legal presumption of the continuance of own*Cuyler a policy of insurance on his life for ership until some evidence be offered of its the sum of $2,500, payable to his legal repre- retransfer to George N. Cuyler. The possessentatives on proof of death. In August, sion of the policy itself by George N. Cuyler 1887, George N. Cuyler assigned and deliv- before the death of his father is not, in my ered the policy to his father, George Cuyler, judgment, alone sufficient to rebut the pre and a duplicate of the assignment was filed sumption of continuance of ownership of the in February, 1891, in the office of the com- policy by his father. When, in addition to pany. George Cuyler, the father, died in that possession, however, is shown the failNovember, 1893, in the city of Albany, leaving ure of the executors of George Cuyler to find a last will and testament, wherein the de- among his papers the assignment which was fendants were named as his executors. After once delivered to him, a legal inference would the filing of the duplicate assignment with fairly seem to follow that that assignment the insurance company, and previous to the had been destroyed and the policy retransferred by the father to the son. This is suf- thereof up to the time of his death, claimficient in my judgment to establish a prima ing to be the owner thereof; and the defendfacie case of ownership in the son, and in ants Henry S. McCall and Matthew J. Walthe absence of other evidence is sufficient lace, as executors of George Cuyler, deceased, to sustain the conclusions of the trial jus- never had possession of said policy of intice."

surance." (2) As contained in the ninth The single legal question presented is subdivision of the stipulation, which refers whether the administratrix of George N. Cuy- to the evidence of the son, in the accounting ler, the plaintiff, has sustained the burden proceeding of his father's estate, which reads of proof resting upon her by showing that as follows: "George N. Cuyler was subthe policy, which was concededly assigned pænaed and sworn as a witness, was required and delivered by the intestate to his father, to and did produce said policy of insurance, was reassigned and delivered by the father and did then and there testify that he was to the son. The Appellate Division correct- the owner of and in possession of said policy ly stated the principles of law upon which of insurance." The manner in which George the defendants were entitled to rest in the N. Cuyler became possessed of the policy of first instance-that, the policy having been insurance, after he had assigned the same shown to be the property of George Cuyler, in writing and delivered it to his father, is the law presumes a continuance of owner- wholly unexplained. All that appears in ship until some evidence of a retransfer ; this record might be absolutely true, even and that the mere possession of the policy if George N. Cuyler had found this policy by George N. Cuyler before the death of his of insurance among his father's papers durfather is not sufficient to rebut the presump- ing the lifetime of the latter and placed it tion of continuance of ownership by the in his pocket without assignment or due aufather. The learned justice writing for the thority. There is no fact stipulated in the Appellate Division then states: “When, in record that overcomes the legal presumpaddition to that possession, however, is shown tion that the assignment in writing by the the failure of the executors of George Cuy- son to his father of this policy and the deler to find among his papers the assignment livery of the same to the father is at the which was once delivered to him, a legal in- present time in full force and effect. The ference would fairly seem to follow that that mere evidentiary fact that the son was in assignment had been destroyed and the policy possession of the policy, claiming to be the retransferred by the father to the son. This owner thereof prior to the death of the father, is sufficient, in my judgment, to establish falls far short of the proof necessary to overa prima facie case of ownership in the son, come the legal presumption that the father and in the absence of other evidence is suf- died possessed in law of this policy and that ficient to sustain the conclusions of the trial his legal representatives are entitled to coljustice."

lect the same. This court has recently had It is to be remarked in the first place that occasion to pass upon the futility of embrait does not appear in the stipulated facts cing within findings mere evidentiary facts. that the executors of George Cuyler failed Alcock v. Davitt, 179 N. Y. 9, 71 N. E. 264. to find among his papers the assignment The plaintiff, respondent, insists that this which was once delivered to him. All that policy, showing upon its face that George appears in the stipulation is that the ex- N. Cuyler was the person insured, was asecutors of George Cuyler made no affirmative signable and transferable to him by mere declaim to the policy in question, either in livery without any writing, and will be pretheir inventory or final account, and never sumed to have been made for a valuable conattempted by action or other proceeding to sideration. The authorities cited in support recover said policy of insurance until after of this proposition do not sustain it, nor is it the death of George N. Cuyler, the son, when a correct statement of the law governing this they claimed from the company the moneys

The rule applicable to negotiable indue on the policy. The affirmative fact of a struments payable to bearer or indorsed over fruitless search for the assignment does not in blank does not apply to the present situaappear in the stipulation, and, if it did, it tion. The holder of a promissory note inwould have had no particular significance, dorsed in blank, producing the same, need not as a duplicate was on file with the insurance give other evidence of title unless his possescompany. On this vital point of the reas- sion is impeached. Bedell v. Carll, 33 N. Y. signment of the policy by the father to the 581; Collins v. Gilbert, 94 U. S. 753, 24 L. Ed. son we have in this stipulation merely a 170. The mere naked possession of a nonstatement of evidentiary facts. These facts negotiable instrument is not evidence of ownare: (1) As set forth in subdivision 5 of ership. In the absence of a written assignthe stipulation as follows: “After the as- ment to him, the holder must show that he signment of said policy of insurance and the is a bona fide owner and the manner in which filing of a duplicate thereof with the insur- he became such. This court has held that ance company, and previous to the death of proof of an advance of money to a mortgagee, George Cuyler, plaintiff's intestate, George coupled with proof that the one making the N. Cuyler, was in possession of said policy advance has possession of the mortgage, does of insurance, and continued in possession not establish the fact of the purchase of the

case.

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