Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by plaintiff from an order of the Supreme Court at Special Term, Chemung County, which denied her motion for summary judgment and directed summary judgment in favor of defendant dismissing her complaint. Plaintiff sued to recover the proceeds of two insurance policies in the respective sums of $10,000 and $5,000 issued by defendant on the life of her father whose provisions, for the purpose of this appeal, are identical. When the policies were written, his wife was named their beneficiary. On her death he designated, with the consent of the company, his daughter the beneficiary of each policy by indorsement effective September 12, 1945. Five days later the insured entered into settlement agreements with the insurer which revoked his prior changes of beneficiary and which inter alia provided that the company itself should receive the proceeds of the policies and convert the same into annual incomes payable monthly for the life of his daughter in accordance with accompanying actuarial tables. The policies were in full force and effect at the time of the death of the insured on November 28, 1959. Admittedly, proofs of death were furnished as provided by the policy contracts. It is not disputed that the insured had the right to change the beneficiary of the policies with the written consent of the company and that their terms permitted him to place the proceeds of the contracts "in trust with the Company to pay to the Beneficiary from the time when such proceeds are payable * * * an annual life income, according to the accompanying tables." Respondent concedes its obligations under the settlement agreements. In the court below plaintiff moved for summary judgment contending that she was entitled to immediate payment of the face amounts of the policies. Special Term denied her motion and granted judgment to defendant "without prejudice to the right of the plaintiff to bring action against the defendant to recover any monthly payments which may at any time be due her under the provisions of said settlement agreements." Appellant urges that the provisions of the settlement agreements which state that the insurance company "shall receive the proceeds * * * of the above contract that shall become payable by the death of the Insured * * * and in consideration thereof shall make payments in the [manner provided]" did not nullify respondent's obligation to pay the face amount of the policies to her as the substituted beneficiary and were not so intended. She argues that the duty "to receive" the insurance proceeds "[does] not give defendant a right to take the $15,000 and [does] not obligate plaintiff to deliver that sum to defendant." Special Term correctly determined the purpose and effect of the settlement agreements. Order and judgment unanimously affirmed, without costs.