Opinion
May 5, 1909.
Louis L. Babcock, for the appellant.
Joseph H. Morey, for the respondents.
The defendant insurance company again challenges the validity of the order directing the service of the summons by publication upon the non-resident defendants, but that question was settled adversely to it upon the appeal from the order denying the motion to vacate the same. ( Morgan v. Mutual Benefit Life Ins. Co., 119 App. Div. 645; affd., 189 N.Y. 447.)
The plaintiffs contend that the defendant is likewise concluded upon the merits by that decision, since the effect of upholding the order of publication is that the complaint upon which the order is founded states a good cause of action. While that does not necessarily follow, since all of the facts were not before the court as they were made to appear upon the trial, we think, under the authorities cited in the opinion of the Court of Appeals, the plaintiffs are clearly entitled to recover.
The rule laid down in Pomeroy's Equity Jurisprudence (Vol. 3, § 1243) and cited in the opinion, is as follows: "Where a person not being owner of a policy of life insurance, nor bound to pay the premium, but having some claim or color of interest in it, voluntarily pays the premiums thereon and thus keeps it alive for the benefit of a third party, he may thereby acquire an equitable lien on the proceeds of the policy as security for the repayment of his advances."
It is claimed that this rule has also been approved by the Supreme Court of the State of California. ( Stockwell v. Mutual Life Ins. Co., 140 Cal. 198. See, also, Connecticut Mutual Life Ins. Co. v. Burroughs, 34 Conn. 305.)
It is not claimed that the assignment by Elizabeth A. Morgan, the wife, to the plaintiffs' assignor was effective as against the children of the assured, but plaintiffs contend that the premiums which were paid by the assignee and the trustees of his will are chargeable upon the policy and the proceeds thereof, and we think the plaintiffs are right in that regard.
The judgment should, therefore, be affirmed, with costs.
All concurred.
Judgment affirmed, with costs. Appeal from orders directing service by publication dismissed.