(Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Divorce 213-Alimony and counsel fees may be allowed, though wife has funds.

That the wife has funds does not necessarily lead to a denial of alimony and counsel fees in an action for separation or divorce.

2. Divorce 215-Rule for determining amount of alimony and counsel fees stated.

In determining the amount of wife's alimony and counsel fees, the court must consider the evidence as to the amount of the resources of the wife as compared with those of the husband, and from that determine what amount is reasonably necessary for her maintenance and expenses in maintaining the action.

Suit by Margaret O'Keeffe Seitz against Edison Z. Seitz. From orders relating to alimony and counsel fees, defendant appeals. Orders modified.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

PER CURIAM. Order of December 20, 1919, modified by reducing the allowance of counsel fee from $300 to $150, and, as modified, affirmed, without costs. Order of February 16, 1920, modified, by reducing the allowance of counsel fee from $200 to $50, and, as modified, affirmed, without costs.

[1, 2] The fact that the wife has funds does not necessarily lead to a denial of alimony and counsel fee in an action for separation or divorce. The question before the court is whether the allowance is reasonably necessary. In determining this the court must take into consideration the evidence as to the amount of the resources of the wife as compared with those of the husband, and from that reach a judicial determination as to what amount, if any, is reasonably necessary for her maintenance and expenses in maintaining the action. Without analysis of the somewhat vague affidavits presented to the court, it is enough to say that the means of the wife, in comparison to the means of the husband, are not such as to require a denial of the motion as matter of law, but that under the circumstances we think the allowance of counsel fee was excessive.

As the wife has the custody of the child and the expense of his maintenance and education, we are of opinion that the allowance of alimony should not be interfered with.

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MOATS v. ISLAND OIL & TRANSPORTATION CORPORATION. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) 1. Words and phrases-"Gross proceeds."

The expression "gross proceeds" means the sum at which the goods are sold, even if this involved the expense of carriage to market.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Gross Proceeds.]

2. Contracts 143-No construction which will make new contract.

Court will not construe a mercantile contract in such a way that to do so would unmake a contract which the parties have established with certainty.

Submission of controversy by Benjamin F. Moats against the Island Oil & Transportation Corporation. Judgment for plaintiff, without

costs.

Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

PER CURIAM. [1, 2] Judgment for plaintiff, without costs. Few phrases convey a meaning more fixed and rigid than the expression "gross proceeds." It means the sum at which the goods are sold, even if this involved the expense of carriage to market. Therefore it is distinguished from net proceeds, where freight and landing charges are deducted. Lamar Ins. Co. of New York v. McGlashen, 54 Ill. 515, 518, 5 Am. Rep. 162; McMurphy v. Garland, 47 N. H. 316. "Gross proceeds derived by the purchasers from the sale of oil" is a formula peculiarly fitting as a basis to compute a royalty, since it removes from controversy the entire question of deductions incurred in such sales. To shade down and revise this clause because of the place of sale would unmake a mercantile contract after the contracting parties have established its terms with certainty.

(111 Misc. Rep. 442)

HOWARD v. JOHN HANCOCK MUT. LIFE INS. CO. et al.

(Supreme Court, Special Term, Kings County. April, 1920.)

1. Insurance ←586-Wife as beneficiary cannot be divested of her interest without her consent.

An insurance policy taken out by a husband for the benefit of his wife rests an interest in her, of which she cannot be divested without her consent.

2. Insurance 222-When debt secured is paid, title to policy revests in assignor.

Where a life insurance policy has been assigned as collateral, and the debt has been paid and the policy returned prior to any breach of the contract, the title to the policy again vests in the assignor, and such revesting may take place by operation of law without any assignment in writing.

3. Insurance222-Absolute assignment of policy may be shown by parol to have been given as security.

Assignments of life insurance policies, absolute on their face, may be shown by parol to have been given simply as security.

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4. Insurance deem.

(183 N.Y.S.)

222-Assignor of life policy given as security may sue to re

An assignor of a life insurance policy given as collateral security, although the assignment is absolute in form, may sue in equity to redeem on paying the sums lawfully advanced.

Action by Agnes Wadsworth Howard against the John Hancock Mutual Life Insurance Company and another. On plaintiff's motion for judgment on the pleadings. Motion granted.

Noble & Camp, of New York City (W. Cleveland Runyon, of New York City, of counsel), for the motion.

Strong & Mellen, of New York City, opposed.

KAPPER, J. The controversy is between the plaintiff, the beneficiary named in two life insurance policies issued by the defendant insurance company upon the life of her husband (now deceased), and the administrator of the husband. The question involved is presented by a motion for judgment on the pleadings. All of the facts essential to a complete determination of the litigation are contained in the complaint and answer. The undisputed facts show assignments during the lifetime of the assured by him and the plaintiff beneficiary of both policies to secure an indebtedness, reassignments by such assignee to the assignors of all the interest of such assignee in and to said policies, and a written declaration by the said assignee that said assignments to him

"although absolute in form, were in fact collateral for a loan of eighteen thousand dollars ($18,000) and that, said loan having been paid in full, the releases and discharges executed by me on March 25, 1913, were intended merely to acknowledge said payment and to show that the lien on the policies for said loan was released."

The reassignments, after expressing the consideration therefor, are each worded:

"I hereby reassign and retransfer to the within named assignor or assignors, according to the respective interests under the policy contract or valid amendment thereof, all right, title, and interest in and to the within-mentioned policy issued by the John Hancock Mutual Life Insurance Company, and the within assignment is hereby fully discharged."

Each reassignment was accompanied by a release, executed by the assignee, releasing "unto the said insured all my right, title, and interest" in said policy, and renouncing "all claim whatsoever" under same. The defendant insurance company makes no contest, and an order has been entered upon consent, providing that the insurance company shall make payment according to the terms of any judgment which may be entered as between the two remaining parties, namely, plaintiff and the defendant administrator. The answer of said administrator alleges as an ultimate fact or conclusion:

"That by reason of said releases, the beneficial interests and discharges of assignment executed by said Anderson, title to said policies and the proceeds thereof became vested in said Charles M. Howard, the assured, and that the title and interest of the plaintiff as beneficiary was extinguished, and that

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 183 N.Y.S.-6

accordingly the amounts which became due and payable upon the death of said Howard were payable to his estate, or executors or administrators, and not to plaintiff as beneficiary."

[1, 2] The claim is untenable. A policy of insurance taken out by a husband for the benefit of his wife vests an interest in her, of which she cannot be divested without her consent. Sangunitto v. Goldey, 88 App. Div. 78, 80, 84 N. Y. Supp. 989; Garner v. Germania Life Ins. Co., 110 N. Y. 266, 18 N. E. 130, 1 L. R. A. 256. And where a policy has been assigned as collateral security, and the debt is paid, and the policy returned prior to any breach of the contract, the title to the policy again vests in the assignor (see Cooley, Life Ins. 1111); and such revesting may take place by operation of law without any reassignment in writing. Alabama Gold Life Ins. Co. v. Garmany, 74 Ga. 51.

[3, 4] In this state assignments of policies of life insurance, absolute on their face, may be shown by parol to have been given simply as security. Matthews v. Sheehan, 69 N. Y. 585; Marsh v. McNair, 48 Hun, 117. See, also, Upshaw v. Mutual Loan Assn., 29 Misc. Rep. 143, 60 N. Y. Supp. 242. And an assignor of a life insurance policy given as collateral security, although the assignment is absolute in form, may maintain an action in equity to redeem upon paying the sums lawfully advanced. Bohleber v. Waelden, 150 N. Y. 405, 44 N. E. 1041. In Aldrich v. Brinker (D. C.) 143 Fed. 563, the wife beneficiary named in a policy on the life of her husband joined with him in an assignment of it to a bank to secure a loan of $1,000 made to him. A further agreement between the husband and the bank that the assignment should stand as further security for other indebtedness was subordinated to the wife's claim to the proceeds of the policy over and above the original indebtedness of $1,000 to secure which the assignment was given.

Just in what manner the reassignments in question plus the discharge of the debt failed to reinstate the pre-existing status of the wife is not made clear to me, and, indeed, is not the subject of serious argument. No authority bearing out the claim of the present defendant is cited; and in the light of the well-settled rules governing an assignment of a life insurance policy made to secure an indebtedness of the insured where the beneficiary joins in making the assignment with the intention that it shall serve as security only, I can conceive of no basis supporting the defendant's plea. Here the facts show a valid reassignment to the assignors after payment of the indebtedness to secure which the original assignments were given. The only denials in the answer are of the conclusions contained in the complaint as to the legal effect of the transactions between the plaintiff and the insurance company. These denials raise no issue. All of the facts upon which the separate defense rests are as stated herein at the outset. They are insufficient to establish the conclusion which the pleader draws. In view of what has been said, I hold that the reassignments reinstated the beneficiary (wife) to all rights preexisting the assignments in which she joined, and that she was never divested of her rights as beneficiary excepting to the extent of the

(183 N. Y.S.)

indebtedness which upon being satisfied rendered her title to the amount of the insurance unaffected.

Plaintiff's motion for judgment on the pleadings must therefore be granted.

Motion granted.

(193 App. Div. 1)

INSANA et al. v. NORDENHOLT CORPORATION et al.

(Supreme Court, Appellate Division, Third Department. July 3, 1920.) 1. Master and servant ~398—Notice required by Compensation Act held adequate.

In a proceeding for compensation for the death of an employé, held, that the corporate employer, through its superintendent, had knowledge of the accident on the day following, so failure to give notice within 30 days will not, under Workmen's Compensation Act, § 18, preclude compensation.

2. Master and servant 417 (7)—Injury within Compensation Act held question for Industrial Commission.

Whether a fall caused death or it was the result of acute cardiac dilation held under the evidence for the Industrial Commission, in view of Workmen's Compensation Act, §§ 21, 68; it appearing death resulted in an hour after a fall on hard substance, as a result of which the employé struck his left breast.

Appeal from State Industrial Commission.

Claim by Sebastiana Insana against the Nordenholt Corporation, employer, and the Travelers' Insurance Company, insurance carrier, for compensation under the Workmen's Compensation Act for the death of Guiseppe Insana, employé. From an award of the Industrial Commission for claimant, the employer and insurance carrier appeal. Affirmed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Benjamin C. Loder, of New York City (E. C. Sherwood and William B. Davis, both of New York City, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., and Bernard L. Shientag, of New York City, of counsel), for respondents.

KILEY, J. [1] The appellants contend that the notice required by section 18 of the Workmen's Compensation Law was not given to the employer, and that death was caused by acute cardiac dilation, chronic valvular disease of the heart, and that the accident alleged to have happened to the deceased in no way contributed toward such fatality. On May 15, 1918, Guiseppe Insana, with others, was working for the appellant, employer, at its pier in Brooklyn, N. Y. They were unloading a cargo of sacks of hard red cement, each sack weighing 145 pounds. Five minutes before quitting time Guiseppe fell 7 or 8 feet from a pile of these sacks, striking his left breast either upon one of the sacks or upon the platform upon which the sacks were piled. He was helped up by his fellow workmen, complained that he had slipped and fell and hurt himself in the region of the heart. He walked to the

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