SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

APPEAL by the plaintiff, Lizzie Ruoff, 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 on 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 twentyfour 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. 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 persons under the conditions named, and to limit the effect of such a payment when made only to one of the persons thus enumerated.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

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 Wokal's 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 APP. DIV.-VOL. LXXXVI. 29

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. the insured were man and wife, but I 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, HIRSCHBERG and HOOKER, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.

SANITARY CAN COMPANY, Appellant, v. ROBERT F. MULLINS, Respondent.

Conversion the withdrawal from a bank of money of a corporation deposited by its treasurer to his credit as treasurer contrary to its by-laws.

In an action in which the issue litigated was whether the defendant, as the treasurer of the plaintiff corporation, had converted the proceeds of a check received by the defendant from a debtor of the corporation, it appeared that the defendant deposited the proceeds of the check in the bank to the credit of "Robert F. Mullins, Treas.;" that he made withdrawals from the deposit by checks thus signed and applied the money to various purposes. The defendant contended that such purposes were legitimate, while the plaintiff denied it. Held, that the refusal of the court to allow the plaintiff corporation to prove that one of its by-laws provided that checks should be drawn only when signed by the president and countersigned by the treasurer constituted prejudicial error, as, if the defendant deposited the money and thereafter drew it out contrary to the rules formulated by his principal, such act would tend to prove a conversion.

APPEAL by the plaintiff, the Sanitary Can Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 27th day of February, 1903, dismissing the plaintiff's complaint.

Louis L. G. Benedict, for the appellant.

Louis L. Fawcett, for the respondent.

JENKS, J.:

The issue is whether the defendant, who was treasurer of the plaintiff corporation, converted its funds. The funds were the proceeds of a check received by the defendant from a debtor of the corporation. The defendant deposited them in a bank to the credit of

SECOND DEPARTMENT, JULY TERM, 1903.

App. Div.] "Robert F. Mullins, Treas." He made withdrawals therefrom by checks thus signed, and applied the money to various purposes. He contends that those purposes were legitimate, and the plaintiff denies it. The learned counsel for the appellant asked an officer of the plaintiff: "Is there any by-law which provides how the company's money shall be withdrawn from any depositaries?" This was met by a general objection. In answer to a question by the court as to its materiality, the counsel stated that there was a bylaw which provided that the checks should be drawn only when signed by the president and countersigned by the treasurer. The court thereon excluded the question as not material. I think that this was error which requires a reversal of the judgment. The defendant, as treasurer, was a mere depositary, without title to the corporate funds in his possession, charged with the duty to keep them and to disburse them in accordance with the directions of the corporation. (Taylor v. Taylor, 74 Maine, 582.) If the defendant deposited the money, and thereafter drew it out contrary to the rules formulated by his principal, such an act would tend to prove a conversion. (Laverty v. Snethen, 68 N. Y. 522.)

The judgment should be reversed and a new trial ordered, costs to abide the event.

GOODRICH, P. J., BARTLETT and WOODWARD, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

LEWIS PUBLISHING COMPANY, Respondent, v. GOTTLIEB LENZ,

Appellant.

Evidence- a letter written in answer to one addressed to the writer is competent although the whole correspondence is not offered — effect of a statement therein adverse to the claim of the party offering it—the other party may put in evidence the rest of the correspondence—foreign stock corporations doing business in the State of New York without a certificate — right of, after obtaining a certificate, to enforce a contract made before doing so the acts on this subject are not retroactive, or, if so, are unconstitutional.

In an action on a contract the plaintiff's attorney testified that he wrote a letter to the defendant at the address stated in the contract and that he received, through the mail, a letter signed by the defendant, which read as follows

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

"Received your letter 18th inst and would have paid for the books, but my ad was not in as I order it."

Held, that the plaintiff was entitled to introduce the letter in evidence as an admission by the defendant, and that it was not bound to read in evidence the entire correspondence;

That the defendant, however, could have introduced any correspondence bearing upon the subject-matter of the letter;

That the fact that the letter denied that the plaintiff had fulfilled its contract did not defeat the plaintiff's case;

That, while the admission contained in the letter must be taken in its entirety, the plaintiff was not bound by the defendant's statement of his reason for failing to make payment;

Under section 15 of the General Corporation Law (Laws of 1892, chap. 687), which, as it existed prior to the amendment made by chapter 538 of the Laws of 1901, provided, "No foreign stock corporation doing business in this State without such certificate (viz., the certificate of authority to do business) shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate," a foreign stock corporation, upon obtaining the necessary certificate, could enforce a contract made in the course of business transacted by it in the State of New York after the passage of the law and before procuring such certificate.

If the section, as amended in 1901, which provides, "No foreign stock corporation doing business in this State shall maintain any action in this state upon any contract made by it in this State unless prior to the making of such contract it shall have procured such certificate,” was intended to be retroactive, it is, to that extent, unconstitutional.

The further provision of the amended section, that "No such corporation now doing business in this State shall do business herein after December 31, 1892,” indicates that it is limited to corporations doing business at the time of the passage of the act in 1892, and refers to contracts then existing.

APPEAL by the defendant, Gottlieb Lenz, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff. Robert M. Johnston, for the appellant.

Metcalf B. Hatch, for the respondent.

JENKS, J.:

We think that the plaintiff proved his case. The defendant offered no evidence.

It is contended that the learned municipal justice erred in a ruling upon evidence. The attorney for the plaintiff testified that he wrote a letter to Gottlieb Lenz, that being the name of the defendant, and thereafter received through the mail a letter signed Gott