The Fidelity Trust Company of Buffalo, as Committee of Ella M. Kean, Appellant, v. Charles D. Marshall, as Administrator of the Estate of Cyrena M. Berriman, Deceased, Respondent

The Fidelity Trust Company of Buffalo, as Committee of Ella M. Kean, Appellant, v. Charles D. Marshall, as Administrator of the Estate of Cyrena M. Berriman, Deceased, Respondent. Fidelity Trust Co. v. Ma/rshall, 93 App. Div. 607, affirmed. (Argued April 28, 1904; decided May 31, 1904.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 28,1904, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. Martin Claris for appellant. • Adolph Rébadow for respondent. [MAJORITY — Vann, J.] Vann, J. This case is the exact counterpart in principle and the substantial counterpart in its facts of the one last decided with a similar title. (See 178 N. Y. 468.) The parties are the same except that the defendant is sued only in his capacity as administrator with the will annexed of Cyrena M. Berriman, deceased, and not in his capacity as executor of the last will and testament of William Berriman, deceased. The only difference in the facts is that the policy, dated September 5, 1863, was issued by the Mutual Benefit Life Insurance Company of New Jersey, for $4,000 and was drawn payable to Mrs. Lymburner if she survived her husband, but in case she “ should die before the decease of the said Hamilton M. Lymburner, then the amount of this insurance shall be payable to their children or to their guardian if under age.” Except as thus stated the complaint sets forth substantially the same facts as in the other action. A demurrer in the same form, interposed by the defendant, was sustained by the Special Term and the Appellate Division affirmed with one dissenting vote. Leave was thereupon given to appeal to this court and the same questions were certified to us in the same form, except that the second question in this action referred to but one policy, while in the other, which involved two policies, both, were referred to. The two actions are identical in principle and the same judgment should be pronounced in each. Accordingly, we affirm the order appealed from, with costs, answer the first question in the affirmative and the second in the negative. Gray, Bartlett and Werner, JJ., concur; Parker, Ch. J., O’Brien and Haight, JJ., dissent. Order affirmed.