THE NEW YORK SUPPLEMENT VOLUME 162 LUKASIK v. CZARCZYNSKI. (Supreme Court, Special Term, Erie County. December 16, 1916.) 1. INSURANCE 593(1)—LIFE INSURANCE-HUSBAND AND WIFE. Under Domestic Relations Law (Consol. Laws, c. 14) § 52, providing that a woman may cause her husband's life to be insured, and that she, surviving, is entitled to receive the insurance money, as her separate property, free from any claim of a creditor or representative of the husband, he, without her knowledge, taking a policy on his life, payable to such person as to the insurer appears equitably entitled to it, and the insurer paying it to her, she is entitled to it as against a creditor of the husband, to whom, without her consent, he assigned it. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1452, 1476– 1478, 1482, 1485; Dec. Dig. 593(1).] 2. WILLS 6-BEQUEST-LIFE INSURANCE. Life insurance, which under authority in the policy the insurer pays to insured's wife, as equitably entitled to it, is no part of insured's estate, and so is unaffected by bequest in his will of a certain amount of money. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 5-10; Dec. Dig. ~~6.] 3. COURTS 190(8)—CITY COURTS-REVIEW-FINDINGS OF FACT. Findings of fact by a city court cannot on appeal be disturbed by the Special Term, it being unable to say the findings are against the weight of evidence. [Ed. Note. For other cases, see Courts, Dec. Dig. 190(8); Appeal and Error, Cent. Dig. § 103.] Appeal from City Court of Buffalo. Action by Rosalia Lukasik against Stanislaus Czarczynski. Judgment for plaintiff, and defendant appeals. Affirmed. Leon J. Nowak, of Buffalo, for appellant. TAYLOR, J. This is an appeal from a judgment rendered in the City Court of Buffalo in favor of the plaintiff upon an action to recover the sum of $709. This amount represented the proceeds of two insurance policies upon the life of the plaintiff's husband, Frank Lukasik, who died November 1, 1913. The said amount was paid over to the plaintiff by a check of the insurance company. The plaintiff alleged in her complaint that the defendant caused her For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 162 N.Y.S.-1 to indorse this check and deliver it to him, upon his promise that he would pay some expenses to which he had been put on account of the plaintiff's husband and deliver the balance of the proceeds to her. She further alleged that the defendant had failed and neglected to return the money, or any part thereof. The defendant in his answer admitted receiving the check, but alleged by way of counterclaim that the plaintiff had requested the defendant to pay the premiums on the policies, and to advance from time to time to herself or her husband such sums as they might need for their support and maintenance, and that in consideration of such advances the plaintiff and her husband agreed to assign to him all their interest in the policies. He further alleged that he had fully performed his part of the agreement, and that the advances thereafter made by him to the plaintiff and her husband exceeded the amount of the insurance. He also alleged that the husband had assigned his interest in the policy to him, and that the plaintiff had voluntarily delivered the check to him in satisfaction of this indebtedness. The action has been tried twice. On the first trial judgment was rendered in favor of the plaintiff for the sum of $250. She appealed to this court, and the judgment was reversed, and a new trial granted, on the ground that the judgment was unauthorized by the evidence. Upon the second trial the plaintiff recovered the full amount of her claim, less the amount of premiums paid on the policy by the defendant. From this judgment the defendant has taken this appeal. Upon the trial the defendant testified that the insurance policies were taken out to secure him for a past indebtedness of upwards of $1,000 owing to him by the plaintiff and her husband. The plaintiff denied that she or her husband were ever indebted to the defendant in this or in any other amount, or that he at any time advanced money for their support and maintenance. The defendant also testified that the plaintiff knew all about the existence of the policies from the date of their issuance, which was October 23, 1911, while the plaintiff asserted, on the other hand, that she never had heard of the policies until a few days before her husband died. It is conceded that the defendant paid all the premiums on these policies. The policies in question were so-called "industrial policies." They were not placed in evidence, the attorney for the plaintiff stating that they were in the home office of the insurance company in New Jersey, and that he had been unable to procure them for use upon the trial. În such policies there is no named beneficiary. The following clause of the policies was, however, stipulated into the record: "It is understood and agreed that the said company may make any payment or grant any nonforfeiture privilege provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such privilege to any or either of them shall be conclusive evidence that such pay⚫ment or privilege has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied." It is clear that the company recognized the plaintiff as the beneficiary of the policies under and by virtue of this provision of the contract, when it paid the proceeds thereof to her and received her receipt therefor. Under the condition quoted, the company had a right to pay the money to the plaintiff or to the defendant, and neither could claim an absolute right to the proceeds until the company had exercised its election. Had the company chosen to recognize the equity of the defendant, had it paid the money to him and taken his receipt therefor, the plaintiff could not have successfully challenged that action, nor the exercise of that right. Her remedy would have been to pursue the fund in the defendant's hands, and recover all sums thus paid to him over and above such amount as he could show himself equitably entitled to. [1, 2] But this case stands upon an entirely different footing, owing to the provisions of section 52 of the Domestic Relations Law, which reads in part as follows: "A married woman may cause the life of her husband to be insured for a definite period, or for the term of his natural life. Where a married woman survives such period or term, she is entitled to receive the insurance money, payable by the terms of the policy, as her separate property, and free from any claim of a creditor or representative of her husband.” The remainder of the section is not applicable here. It is clear that, from the moment the company paid the money to the plaintiff, the title thereto vested in her absolutely by virtue of the above statutory provision. It was insurance money, lawfully payable to her, and eo instante became, by force of this law, exempt from all claims of her husband's creditors. But for this statute the defendant, assuming his version of the issuance of the policies to be the true one, could collect out of this fund, or out of any other fund left by the husband, any amount which he could prove was owing to him. But the Legislature has enacted that insurance moneys may not be levied on in such a proceeding, and it follows, therefore, that from the moment title in the same became vested in the plaintiff the defendant's right to share in any portion of the fund was extinguished. The attempted assignment of the policies by the husband to the defendant without the consent of the plaintiff could not deprive the latter of the protection of the statute. The assignment itself states that the assignee acquired no rights thereunder enforceable against the company. It is equally clear that without the plaintiff's consent the assignee could acquire no rights enforceable against her. The following cases support this proposition: Whitehead v. New York Life Ins. Co., 102 N. Y. 143, 6 N. E. 267, 55 Am. Rep. 787; Frank v. Mutual Life Ins. Co., 102 N. Y. 266, 6 N. E. 657, 55 Am. Rep. 807; Smillie v. Quinn, 90 N. Y. 492; Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395; Brummer v. Cohn, 86 N. Y. 17, 40 Am. Rep. 503; Anderson v. Goldsmith, 103 N. Y. 617, 9 N. E. 495. The fact that the statute referred to states in terms that a married woman may, "in her own name, or in the name of a third person as . her trustee, cause the life of her husband to be insured." etc., does not, in my judgment, help this appellant. This statute was intended. to afford financial protection to widows, and the courts should not go out of their way to limit its scope in that connection. In the case at bar it is true that the policies in question were taken out by the husband and without the wife's knowledge, and that the wife was not named as beneficiary any more specifically than was any other relative of the insured by blood or marriage, or a creditor; however, the wife survived the insured, and the payment by the insurance company of the amounts due under the policies to the widow constituted her the lawful beneficiary as fully as if she had been named in the policy as sole beneficiary. And there is respectable authority-for example, Whitehead v. New York Life Ins. Co., supra-to the effect that under the circumstances just recited the husband is the agent of the wife, and the widow obtains the protection of the statute. The assignment therefore, was null and void, and the appellant acquired no rights thereunder. An unprobated will of the husband is in the record, wherein is contained a bequest to the defendant of the sum of $708. This will, even if probated, could not operate upon these insurance moneys, which were no part of the husband's estate. This fund could not be taken from the plaintiff, without her consent, by any form of gift, bequest, or assignment of the husband. [3] There is another reason why the defendant must fail upon this appeal. All of the material facts as to his claim for moneys loaned to the plaintiff and her husband have been found against him by the learned trial court below, and I cannot say that such findings are against the weight of the evidence. If, therefore, we assume, for the purpose of argument, that a creditor of the husband can in a proper case reach these insurance moneys, we are confronted with the fact that the defendant upon the trial has failed to establish himself as such creditor. He has failed to prove his counterclaim by a preponderance of the evidence. For these reasons, the judgment appealed from must be affirmed, with costs of both appeals to the plaintiff. POSTAL TELEGRAPH-CABLE CO. v. ASSOCIATED PRESS. (No. 1.) (Supreme Court, Appellate Division, First Department. December 8, 1916.) 1. TELEGRAPHS AND TELEPHONES 34-INTERSTATE COMMERCE ACT "PREFERENCE." Where a telegraph company leased wires to a press agency at certain rates, and thereafter made similar contracts, under similar circumstances and conditions, with other news agencies, at lower rates, although the contracts were for service between different points than the service contemplated in the first lease contracts, there was a "preference or advantage to a locality," within Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, § 1, as amended by Act Cong. June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. 1913, § 8563), providing that the act shall apply to telegraph companies; section 3 (U. S. Comp. St. 1913, § 8565), providing that it shall be unlawful for any common carrier subject to the act to make or give any undue or unreasonable preference or advantage to any locality in any respect. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34. For other definitions, see Words and Phrases, First and Second Series, Preference.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. TELEGRAPHS AND TELEPHONES 34-DISCRIMINATORY CONTRACTS. Discriminatory contracts by telegraph companies to the prejudice of one party are forbidden by the common law. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34.] 3. TELEGRAPHS AND TELEPHONES 34—DISCRIMINATION AGAINST PRESS AGENCY-INTERSTATE COMMERCE ACT-"PREFERENCE." Where a telegraph company leased wires to a press agency, and thereafter leased other wires for a like service and under similar conditions to other news agencies, with whom there was a keen rivalry, at lesser rates, although the service under any contract made at a lesser rate was not between the same points as the service provided for in the first contracts, there was a "preference" given to the later lessees, to the undue and unreasonable prejudice and disadvantage of the first lessee, in violation of Interstate Commerce Act, § 1, as amended by Act Cong. June 29, 1906, § 1, giving it application to telegraph companies, and section 3, making it unlawful for any common carrier subject to the act to make or give any undue or unreasonable preference or advantage to any person, company, firm, corporation, locality, or particular description of traffic. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34.] 4. TELEGRAPHS AND TELEPHONES 34-LEASING WIRES UNLAWFUL DIS CRIMINATION-RIGHT OF PARTY DISCRIMINATED AGAINST. Where a telegraph company leased wires to a press agency, and later leased other wires, under similar conditions, and for like services, to other news agencies at a lower rate, in violation of the Interstate Commerce Act, the telegraph company violated its contract with the press agency, giving it the right to cancel the contract, but the agency was not required to surrender the service, because it had absolute right thereto under the common law and under the statute, on account of the public obligation of the telegraph company. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34.] 5. TELEGRAPHS AND TELEPHONES 34-LEASING WIRES UNLAWFUL DISCRIMINATION-RECOVERY BY TELEGRAPH COMPANY. Where a press agency leased wires from a telegraph company, which later leased other wires to other news agencies at lower rates, in violation of the Interstate Commerce Act, the press agency, having continued to accept the services, was liable, at least on a quantum meruit, for the reasonable value thereof, but the telegraph company could not recover more than the rate given the press agency's competitors. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34.] 6. CONTRACTS 346(12)—ACTION ON-RECOVERY ON QUANTUM MERUIT. A recovery on a quantum meruit may be had under an allegation of service in pursuance of a contract made. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1748; Dec. Dig. 346(12).] 7. TELEGRAPHS AND TELEPHONES 34-DISCRIMINATION-OFFER OF RATES. A telegraph company's offer of discriminatory rates cannot in law be deemed actual discrimination, and until a lesser rate is given parties, so as to give them an unfair advantage over a party which has already contracted with a telegraph company for services, the latter party remains liable on its contract with the telegraph company to pay the contract rate. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. 34.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |