EMMA A. TAYLOR, as Executrix, etc., of ROYAL A. JOHNSON, Deceased, Appellant, Respondent,
NEW YORK LIFE INSURANCE COMPANY, Respondent, Appellant.
APPEAL by the plaintiff, Emma A. Taylor, as executrix, etc., from part of a judgment of the Supreme Court in part in favor of defendant, entered in the office of the clerk of the county of Onondaga on the 14th day of July, 1911, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived; and also from part of an order entered in said clerk's office on the 24th day of July, 1911. Also an appeal by the defendant, the New York Life Insurance Company, from the said order entered on the 24th day of July, 1911.
The plaintiff appeals from so much of the judgment as dismisses her complaint on the merits as to a certain policy of life insurance numbered 709973, which will hereafter be called policy No. 3, and also from an order amending said judgment by directing that costs of the second trial of this action be
awarded to defendant, and that the amount thereof be an offset against the sum awarded to the plaintiff on said judgment.
The defendant appeals from so much of the order amending the judgment as denies its motion to have awarded to it the costs of the first trial herein and in the Appellate Division and Court of Appeals.
The judgment as originally entered provided that the plaintiff, as executrix, etc., recover of the defendant the sum of $998.72, the amount directed by the court on policy No. 709974, which will hereafter be called No. 4, set up in the first count of the complaint, together with costs, amounting to the sum of $427.73, amounting in all to the sum of $1,480.45, and that the plaintiff have execution therefor, and that the complaint of the plaintiff as to policy No. 3, set up in the second count of the complaint, 'be, and the same hereby is, dismissed upon the merits.' By a subsequent order of the court, duly entered, said judgment was modified to the extent of providing that the costs of the second trial of this action be also awarded to the defendant, and directed that the amount of the same should be offset against the recovery of the plaintiff.
The action was commenced on November 8, 1907, and was brought to recover on two policies of insurance on the life of Royal A. Johnson, deceased. The action was first tried in June, 1908, before the court and a jury, and a verdict was directed in favor of the plaintiff in the sum of $4,856.92 upon policy No. 4. Judgment was entered thereon in the Onondaga county clerk's office June 23, 1908, in favor of the plaintiff and against the defendant for that amount. Upon appeal by the defendant from such judgment this court affirmed said judgment, with costs. (131 A.D. 922.) From such judgment an appeal was taken to the Court of Appeals, which resulted in a reversal, with costs to abide event. (197 N.Y. 324.) The second trial was had before the court, a jury having been waived. The trial justice rendered a decision containing findings of fact and conclusions of law and directed judgment in favor of the plaintiff and against the defendant in the sum of $788.82, with interest from June 20, 1906, upon policy No. 4, set up in the first count of the complaint and dismissing the
complaint as to policy No. 3, set up in the second count of the complaint. Thereafter a motion was made as to the costs which should be allowed to the respective parties, which will be considered later.
Charles E. Spencer, for the plaintiff.
Jerome L. Cheney, James H. McIntosh and Frank J. O'Neill, for the defendant.