Salvin died without having made any last will and testament, and on June 18, 1914, letters of administration were duly issued upon his estate to the plaintiff; that due proofs of death have been filed with the company, and approved by it, and all the terms and conditions of the policy have been complied with, including the annual payments therein provided for. The complaint then proceeds to set forth that by reason of the foregoing there is due and owing by the defendant Equitable Life Assurance Society, to the plaintiff, the sum of $1,500, with interest thereon from June 20, 1914; that defendant Bertha Salvin claims to have some right, title, and interest in or to the said sum, and that the society refuses to pay the sum to the plaintiff for that reason. The plaintiff's action is based upon the theory that the designation of the beneficiary as "Bertha, the wife of the insured," imports an implied condition that such beneficiary, to receive the proceeds of the policy, should continue to be his wife up to the time of his death, and that her prior divorce, even though granted in her favor and at her instigation, terminated her interest in the policy. We think this claim. is untenable. The words "wife of the insured" were purely descriptive, and could not affect the rights of the beneficiary named therein, who was Bertha Salvin. Overhiser, Administratrix, v. Overhiser et al., 63 Ohio St. 77, 57 N. E. 965, 50 L. R. A. 552, 81 Am. St. Rep. 612, expressly held that, where a married woman is named as beneficiary in an insurance policy on her husband's life, she is entitled to the proceeds notwithstanding a divorce obtained by her before his death. In that case a policy on the life of George P. Overhiser was payable to Lena Overhiser, "wife of George P. Overhiser, of Montrose, in the county of Montrose, state of Colorado, if living; if not living, to his executors, administrators, or assigns." At the time of the issuance of the policy Lena Overhiser was the wife of George F. Overhiser, but thereafter, and before the death of the insured, she had voluntarily instituted a suit for absolute divorce against him, and had succeeded therein, and was divorced from him a year before his death. The court said (63 Ohio St. 82, 57 N. E. 965, 50 L. R. A. 552, 81 Am. St. Rep. 612): "Lena Overhiser was named in the policy as the beneficiary, and the words 'wife of George Overhiser' were descriptive only. The policy defines in express terms the only condition upon which it would be payable to the administrator of George P. Overhiser, viz., that Lena should not be living at the date of his death. It contains no terms indicating that her right to the fruits of the policy is conditioned upon her remaining his wife. The policy was executed to him, and the presumption is that it was upon his application. But, if the insurance was effected by her, she had at the time an insurable interest in his life, and the contract would not become void by the termination of the marital relation before his death. The conclusion of the courts below is in accordance with settled principles. Conn. Mutual Life Insurance Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251]; Central Bank of Washington v. Hume, 128 U. S. 195 [9 Sup. Ct. 41, 32 L. Ed. 370]." In Bachmann v. Supreme Lodge Knights and Ladies of Honor et al., 44 Ill. App. 188, the deceased had originally taken out a benefit certificate in a lodge of a fraternal order, payable to his daughter, which he afterwards surrendered, and had a new one issued to "his wife. Cecelia Bachmann." The last named was then, and up to the time of his death, his affianced wife, but was never married to him. After his death the beneficiary named and the daughter both claimed payment of the amount of the certificate. The court said (page 192): "The by-laws of the lodge provide that, should all the beneficiaries named die before the decease of a member, and no other or further disposition be made thereof, the benefit shall be paid to heirs of the deceased member, dependent upon him, and if no person or persons shall be entitled to receive such benefit it shall revert to the relief fund. The beneficiary named in this certificate is not dead. The condition under which the benefit was to become payable to the heirs of the member has never happened. Appellant, Elizabeth Bachmann, has no claim upon this fund. Munhall v. Daly, 37 Ill. App. 628. It must either be paid to Cecelia Welisek or revert to the relief fund. The lodge does not claim a reversion." In Durian v. Central Verein, 7 Daly, 168, the deceased had been a member in his lifetime of the defendant society and was the husband of one Catherine Durian. During his wife's absence in Europe the husband lived with the plaintiff, the beneficiary named in his certificate, who adopted his name and passed as his lawful wife until the time of his death. The article in the constitution under which the names of the wives of the members were to be registered was complied with by the husband by directing that the name of the plaintiff, with whom he was living, should be registered as that of his wife. The court held that the amount of the certificate was payable, not to the lawful wife, but to the person whom he had designated and registered as his wife, and to whom he desired the money to be paid. It was said (page 173): "The amended constitution, to which he assented, formed a new contract between him and the verein, under the terms of which he was at liberty to choose whom he pleased as appointee. He named Barbara, the plaintiff. It is objected that he falsely alleged her to be his wife, and that, though he named her as his wife, he did not designate her as the beneficiary. There was no set form of words which he was bound to employ. All that he was required to do was to select the person whom he wished to receive the money on his death, and communicate her name, that it might be entered on the registry. There can be no doubt as to his intent, and that that intent was effectuated. That the plaintiff was called wife by him ought not to be permitted to defeat her claim. The intent is to be regarded, and that intent is plain. It has been held that 'a woman, who was married to a man, but illegally, because he had a former wife living,' could recover in an action upon a policy of insurance in her favor. Equitable Life Assurance Society v. Paterson, 41 Ga. 338 [5 Am. Rep. 535].” In Wait v. Wait, 4 N. Y. 107, Judge Harris said: "Whether or not a woman, divorced from her husband, upon his subsequent death, is to be called his widow, may furnish a curious question in philology, but cannot, I think, be decisive of the plaintiff's rights. It is true, the Legislature, in declaring what estates are liable to dower, speak of the party entitled to dower as a widow. Possibly the term may not, in every instance, be the most appropriate, yet, as descriptive of the person intended, it is clearly sufficiently so." There can be no doubt that the divorce obtained by Bertha Salvin did not and could not defeat her rights as beneficiary under the policy of insurance in her favor then subsisting. Olmsted v. Keyes, 85 N. Y. 593; Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. Ed. The order, as resettled, will therefore be reversed, with $10 costs and disbursements, and the motion for judgment for defendant on the . pleadings granted, with $10 costs. All concur. (165 App. Div. 366) SALVIN v. SALVIN et al. (No. 6602.) (Supreme Court, Appellate Division, First Department. December 31, 1914.) Appeal from Special Term, New York County. Action by Harry Salvin, as administrator of Sidney I. Salvin, deceased, against Bertha Salvin and the New York Life Insurance Company. From an order denying a motion for judgment on the pleadings, the defendant Bertha Salvin appeals. Reversed, and motion granted. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. Otto Horwitz, of New York City, for appellant. DOWLING, J. Order appealed from, as resettled, reversed, with $10 costs and disbursements, and the motion for judgment for defendant granted, with $10 costs, on the opinion in Salvin v. Salvin and the Equitable Life Assurance Society of the United States, 151 N. Y. S. 60, decided herewith. All concur. (S8 Misc. Rep. 551) JUNK v. MOORE. (Supreme Court, Appellate Term, First Department. January 7, 1914.) 1. COURTS (§ 189*)-MUNICIPAL COURTS-DISMISSAL OF ACTION-CASE RESERVED. Under the Municipal Court Act (Laws 1902, c. 580), a case marked "Reserved generally," which has never been restored to the trial calendar, is not subject to a motion for dismissal, as, until a case is moved before a trial justice for trial, there is no power to entertain a motion to dismiss. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*] 2. COURTS (§ 188*)-MUNICIPAL COURTS-LIMITED JURISDICTION. The Municipal Court is a court of limited jurisdiction, and possesses no powers other than those conferred by the statute. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 412, 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. § 188.*] 3. COURTS (§ 189*)-MUNICIPAL COURTS-DISMISSAL-APPLICATION OF STATUTE. Code Civ. Proc. § 822, part of chapter 8, which by section 3347, subd. 6, is made to apply only to proceedings taken in the courts specified, of which the Municipal Court is not one, does not apply to Municipal Courts, so as to authorize the dismissal of a case marked "Reserved generally." [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*] 4. COURTS (§ 189*)-MUNICIPAL COURTS-DISMISSAL-APPLICATION OF STAT UTE. Code Civ. Proc. § 822, is not made applicable by a provision of the Municipal Court Act providing that the provisions of the Code of Civil Procedure should apply where applicable. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Daniel M. Junk against James L. Moore. From a judg-· ment dismissing the complaint for failure to prosecute, plaintiff appeals. Reversed, and motion to dismiss denied, with leave to either party to move that case be placed on day calendar. Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ. Thompson & Ballantine, of New York City (John F. O'Neil, of New York City, of counsel), for appellant. P. Henry Delehanty, of New York City, for respondent. LEHMAN, J. [1] The plaintiff herein appeals from a judgment dismissing the complaint for failure to prosecute. The case had previously been marked "Reserved generally," and had never been restored to the trial calendar, although apparently the plaintiff's attorney, shortly before the motion to dismiss was made, had attempted to make a motion for this purpose, but had erroneously entitled his motion papers. Aside from any question of whether the court was justified, in the exercise of a proper discretion, in granting the motion to dismiss under such circumstances, I am of the opinion that the court erred, because it had no jurisdiction to consider the motion. Under the Municipal Court rules either party could move to restore a cause from the calendar of cases marked "Reserved generally" to the day calendar, and if upon the day set for trial the plaintiff is not ready the trial justice has undoubted power to dismiss the complaint. Until, however, a case is moved before a trial justice for trial, I can find no power in the court to entertain a motion to dismiss. [2, 3] The Municipal Court is, of course, a court of limited jurisdiction, and possesses no powers other than those conferred by the statute. Section 822 of the Code of Civil Procedure is the only statute which could possibly be construed as conferring this power on the court, but that section is part of chapter 8 of the Code, and it is specifically provided by subdivision 6, section 3347, of the Code, that chapter 8 applies only to proceedings taken on and after the 1st day of September, 1877, in an action or special proceeding in one of the courts specified in subdivision 4 of the section. The courts specified in subdivision 4 of the same section, as amended in 1913, are "courts of record," but previous to that amendment were "the Supreme Court, the City Court of the City of New York, or a County Court." Obviously the Municipal Court is not one of the courts specified. [4] It is claimed, however, that in spite of this limitation, placed by the Code upon the cases to which section 822 is applicable, it is nevertheless applicable to all cases brought in the Municipal Court by virtue of the provisions of the Municipal Court Act that: "The provision of the Code of Civil Procedure and rules and regulations of the Supreme Court as they may be from time to time shall apply to the Municipal Court as far as the same can be made applicable and are not in conflict with this act." It seems to me, however, quite plain that, where the Code has specifically provided that a section is applicable only to specific courts, such provision constitutes a direct limitation of the section itself, and the mere fact that the Legislature thereafter created a new court and declared in general language that the provisions of the Code, so far as the same can be made applicable, apply to such new court, is I think insufficient to permit us to infer that the section whose application has been expressly limited to other specified courts is also applicable to the new statutory court. This court has, in all cases where the matter was squarely presented to it, so held; but the defendant urges that this view is opposed to the decision of the Appellate Division of the Second Department in the case of Maune v. Unity Press, 139 App. Div. 740, 124 N. Y. Supp. 504. In that case it is true the court held that section 547 of the Code of Civil Procedure applied to the Municipal Court, though it is a portion of chapter 6 of the Code, which, like chapter 8, is applicable only to the courts specified in subdivision 4 of section 3347. I think that the opinion in that case, however, shows on the contrary that, in the absence of special circumstances, the Appellate Division of the Second Department is in accord with these views. The opinion is based expressly upon the special circumstances that section 547 of the Code was enacted after section 3347 was enacted and last amended, and after section 20 of the Municipal Court Act was enacted and went into effect, and that the Legislature therefore failed to show any clear intent to limit the application of its last enactment. While as a matter of comity this court has followed the decision in that case, it has no application to the facts before us, for section 822 of the Code of Civil Procedure in substance antedates section 3347 of the Code, and that section has been amended in 1913, long after the Municipal Court Act became effective. It follows that section 822 is applicable only to the courts specified in the last amendment of subdivision 4 of section 3347, and is not applicable to the Municipal Court. Order and judgment must therefore be reversed, with costs, and the motion to dismiss be denied, with leave to either party to move that the case be placed on the day calendar. All concur. (165 App. Div. 24) JOHNSTON v. JOHNSTON et al. (Supreme Court, Appellate Division, Second Department. December 18, 1914.) 1. PARTITION (§ 111*)-DISTRIBUTION OF ASSETS-RIGHT TO. In a partition suit, to which an administrator was a party, sale was made within three years after the granting of letters. The administrator's final accounting had been approved by the surrogate, and the interlocutory judgment did not provide that the sale should be free from the lien of every debt of the decedent. Held, though Code Civ. Proc. § 1538, provides that, unless three years shall have elapsed since the granting of letters of administration, the share of a deceased person shall be paid into court, the court might distribute the funds among those entitled. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 401-418; Dec. Dig. § 111.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 151 N.Y.S.-5 |