Lizzie Ruoff, as Administratrix, etc., of Lena Dinselbacher, also Known as Lena Makel, Deceased, Appellant, v. The John Hancock Mutual Life Insurance Company, Respondent

Lizzie Ruoff, as Administratrix, etc., of Lena Dinselbacher, also Known as Lena Makel, Deceased, Appellant, v. The John Hancock Mutual Life Insurance Company, Respondent. Insurance —payable to a designated beneficiary and at the option of the company to the administrator — the administrator cannot sue therefor — an unma/rried woman may insure her life for the benefit of her reputed husband. A policy of life insurance provided: “ In the event of the.decease of the insured while this policy is in force, payment of the amount due hereunder will be made within twenty-four hours after satisfactory proof of death to .the beneficiary, if living; * * * but the company may make payment to the executor or administrator of said insured, or to any relative by blood, or connection by marriage or to any other in the judgment of said company equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for burial or for any other purpose, and the receipt of any such person shall be conclusive evidence that payment has been properly made and shall discharge the company from liability under the policy." At the time of the insured’s death the beneficiary designated by the insured was living. Held, that the administrator of the insured was not entitled to maintain an action to recover upon the policy. A woman may insure her life for the benefit of her reputed husband, even though she is not lawfully married to him. Appeal by the plaintiff, Lizzie Buoff, as administratrix, etc'., of Lena Dinselbacher, also known as Lena Makel, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 27th day of April, 1903, in favor of the defendant, dismissing the plaintiff’s complaint. The plaintiff sues as administratrix of the assured upon a life insurance policy, and the Municipal Court dismissed her complaint at the close of her case oh the ground that she could not maintain this action. The policy, which was-written in $250, provides: “In the event of the decease of the insured while this policy is in force, payment of the amount due hereunder will be made within twenty-four hours after satisfactory proof of death, to the beneficiary, if living, last nominated, whether in the proposal herefor or in any written amendment thereto filed with and approval by the company ; but the company may make payment to the executor or administrator of said insured, or to any relative by blood, or connection by marriage or to any other in the judgment of said company equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured for burial, or for any other purpose, and the receipt of any such person shall be conclusive evidence that payment has been properly made and shall discharge the company from liability under the policy.” The beneficiary named in the proposal of the assured is Edward Makel, who lives. Martin E. Halpin, for the appellant. Emanuel Newman, for the respondent. [MAJORITY — Jenks, J. :] Jenks, J. : The contract as written provides for payment to a certain living beneficiary. The contract as construed by the plaintiff would entitle the administratrix to the same status as that beneficiary. But such construction is counter to the terms of the policy, for the reason that the' clause wherein the administrator is named makes it optional with the insurer to pay the administratrix or any other of the persons enumerated with her. The scheme of the clause is to protect the company in the event of its payment to any one of such persbns under the conditions named, and to limit the effect, .of such a payment when made only to one of the persons thus .enumerated. It does not clothe the administratrix with a right of action upon the policy. (Golden v. Metropolitan Life Ins. Co., 35 App. Div. 569.) In Wokal v. Belsky (53 App. Div. 167) it is said that such a clause is inserted in industrial policies where the amount is small, so that the company may discharge its obligation to any one of the designated class without requiring administration, and that “ the only effect of the clause is to provide the company with a defense, in case it has paid thereunder. It neither grants nor takes away a cause of action from any person.” . Further, if the construction made by the plaintiff be correct, then there was no assurance to the assured that her designated beneficiary would ever benefit by her nomination unless, at best, he was first in the race of the vigilant. (Golden v. Metropolitan Life Ins. Co., supra) The learned counsel for the appellant cites WokaVs case as in his favor. But in that case the policy named no beneficiary in the sense that this intestate nominated Mr. Makel, but provided that payment might be made to any relative or to any other person equitably entitled thereto. And so when payment was not made to any one of the designated class, the court decided that the administrator, although not among those designated, might sue as representing the estate, applying the principle that the obligation could not fail for want of a particular payee. But in that case the court said: “ We think no right vested in the persons referred to in this article, if for no other reason than that their right depended upon the willingness of the appellant to recognize them, which it was not bound to do. But it is plain that the beneficiary designated was the insured’s estate.” This case, then, would be an authority for the plaintiff if the contract had not provided for payment to a beneficiary exclusively named in the first instance, but had contained only the optional clause. Bishop v. G. L. E. O. of M. A. (112 N. Y. 627) does not apply, for the reason that the administratrix does not in this case represent exclusively the intended beneficiary. Even if a payment made to the administratrix under the optional clause would discharge the obligation of the company, that is far from establishing an absolute right of action in the administratrix perforce of her inclusion in the designated class of payees. The question mainly litigated was whether the beneficiary and the insured were man and wife, but Í fail to see its pertinency The woman was free to insure her life for the benefit of the man, though they were not lawfully married. (Olmsted v. Keyes, 85 N. Y. 593.) I think that the learned municipal justice, Lynch, J., properly disposed of the case, and that the judgment should be affirmed, with costs. Bartlett, Woodward, Hirsohberg and Hooker^ JJ., concurred. Judgment of the Municipal Court affirmed, with costs.