SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 3, 1969
EMILICENT M. KELLAR, AS EXECUTRIX OF ALEXANDER MULKI, DECEASED, APPELLANT,
PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT AND INTERPLEADING PLAINTIFF. CATHERINE MILKIE ET AL., INDIVIDUALLY AND AS EXECUTORS OF AFIFI MILKIE, DECEASED, ET AL., INTERPLEADED DEFENDANTS-RESPONDENTS
Appeal from judgment of Erie Trial Term in action to recover on insurance policy.
Del Vecchio, J. P., Marsh, Witmer, Gabrielli and Moule, JJ.
Memorandum: The proof discloses (albeit to a great extent by respondents' "offers of counsel") that the assignments of the policies of insurance to respondents' testatrix were conditional and to be discharged upon demand by the insured, which demand had been properly made, and refused. Respondents produced no witness or other evidence. Upon this state of the record, the burden of showing anything other than a conditional assignment was cast upon respondents, a burden which they clearly failed to sustain. All concur, Moule, J., not participating.
Judgment reversed on the law and facts, with costs, and judgment granted to plaintiff, with costs.
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