SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
Alexander C. Eustace, for the plaintiff.
H. C. Mandeville, for the defendant.
The parties come into court upon an agreed statement of facts. From such facts it appears that Helen M. Flynn was a daughter of the plaintiff and was born January 23, 1902, and died January 16, 1910; that upon the written application of the plaintiff, the defendant executed a policy of insurance upon the life of said Helen M. Flynn on or about May 11,
1903, by which it agreed to pay to the executors, administrators or assigns of said Helen M. Flynn or to any relative by blood or connection by marriage of said Helen M. Flynn whom said defendant might select, or to any other person appearing to said defendant to be equitably entitled to the proceeds of said policy by reason of having incurred expense in any way on behalf of said Helen M. Flynn for her burial, or for any other purpose, the sum of eighty-one dollars and twenty cents, that being the amount to be paid if such death occurred at the time it did occur.
Later, and on December 14, 1903, upon a similar application, a similar policy was issued by defendant upon the same life. The premiums required to be paid by each of said policies were five cents weekly, and were paid.
Directly after the death of the said Helen M. Flynn notice was given by plaintiff to defendant of such death, and due proofs of the death satisfactory to defendant were served, accepted and retained by said defendant, the payment of $162.40, being the amounts agreed to be paid by the said two policies, were demanded, and defendant refused to pay the same, except the sum of $39.72, being $4 upon each of the said two policies, and the amount of the premiums paid by the said plaintiff on the said policies.
It appears by the facts submitted that prior to the taking out of these two policies with defendant, two policies had been taken out upon the life of the said Helen M. Flynn upon the application of the plaintiff with the Metropolitan Life Insurance Company, one dated March 2, 1903, and the other dated February 9, 1903, both being in effect at the time the policies in suit were obtained, and the Metropolitan Life Insurance Company paid plaintiff $168 in payment of the said two policies.
No defense is interposed here except that the life of the said Helen M. Flynn was by said policies insured beyond the limit allowed by law according to the table of limitations under section 55 of chapter 690 [Laws of 1892] of the Insurance Laws of the State of New York.
Section 55, so far as is material for this case, and as it stood at the time the insurance policies in question were issued, was as follows:
'§ 55. Insurance without the consent of the insured prohibited. No policy of insurance shall be issued upon any property except upon the application and in the name of some person having an interest in the property. No policy or agreement for insurance shall be issued upon the life * * * of another * * * except upon the application of the person insured; but * * * a person liable for the support of a child of the age of one year and upward may take a yearly renewable term policy of insurance thereon, the amount payable under which may be made to increase with advancing age, and which shall not exceed the sums specified in the ...