Opinion
Dwyer, Reilly, Roberts, McLouth & Dicker, of Rochester, N.Y. (David H. Shearer, of Rochester, N.Y., of counsel), for plaintiff.
Vedo M. Candiello, of Hornell, N.Y., for defendant Grace Patterson.
James W. Cullen, of Sayre, Pa., for defendants Donald and Ethel Holcomb.
RIPPEY, District Judge.
This case has previously been before me and was disposed of on July 30, 1936. (D.C.) 15 F.Supp. 759. It is now brought on on motion under rules 113 and 114 of the Rules of Civil Practice of the state of New York for summary judgment for the defendant Grace Patterson. That motion cannot be granted if there is a question of fact remaining for determination by a jury.
Defendant asserts that there is no such question of fact, because the change in beneficiary was not made in accordance with the provisions of the policy. The insured made an attempt to secure a change of beneficiary, but the change was not made in the policy by the insurance carrier because the policy did not accompany the instrument by which the change of beneficiary was attempted. The provision in the policy requiring the policy to be filed so that the company might make an indorsement of change of beneficiary thereon was intended for the protection of the carrier and may be waived by it and was waived by the interpleader in this action and the payment of money into court. Rothstone v. Norton, 231 A.D. 59, 246 N.Y.S. 354, affirmed 256 N.Y. 601, 177 N.E. 157; Matter of Chatham Phenix National Bank & Trust Co., 232 A.D. 598, 251 N.Y.S. 43. The stipulation in the policy relating to method of change of beneficiary does not affect the question of the right of the defendants to the proceeds of the policy as between themselves. Spencer v. Myers, 150 N.Y. 269, 44 N.E. 942, 34 L.R.A. 175, 55 Am.St.Rep. 675.
A question of fact arises upon the pleadings in this case, and therefore the motion for summary judgment must be denied, and it is so ordered.