assignee. He accepts the provisions of the decree by bringing the action, and thereby becomes a party in interest, and entitled to prosecute the bond for his benefit. See Casoni v. Jerome, 58 N. Y., 321; Marsh v. Avery, 81 id., 29.

We concur in the view of the counsel for the appellant that the provisions of § 9 of the assignment act of 1871 are not to be construed as limiting the right to the benefit of the bond exclusively to the original creditors of the assignor, but are intended primarily to prevent one creditor gaining an undue priority over another from the mere fact that he first procured the bond to be prosecuted.

The judgments of the special and general terms should be reversed, and judgment rendered for the plaintiff on the demurrer, with costs in all courts.

All concur.

FRED H. SMITH, Appl't, v. THE NATIONAL BENEFIT SOCIETY OF THE CITY OF NEW YORK, Resp't.'

(Court of Appeals, Filed October 7, 1890.)

1. INSURANCE (LIFE)-EVIDENCE-FRAUD.

Plaintiff was a creditor of one Tyler, who was constituted a "benefit member" of the defendant and it was to pay plaintiff as creditor, upon the death of Tyler, the sum of $10,000. On the trial of the plaintiff's aetion to recover the same, which was contested by the defendant on the ground of fraud, Held, that proofs of application by Tyler to thirty-six different insurance companies securing $282,000 of insurance upon his life, his letters and telegrams to relatives and friends during a year showing a deliberate intent to consumate the fraud by suicide, were all admissible.

2. SAME.

Evidence was also admissible to show that a few months before the insuring began one Bowen having been requested by Tyler to raise money for him and failing. Tyler said he was a man who must have money and if he couldn't raise it he would commit suicide.

3. SAME.

It is permissible in the same connection to detail inquiries which Tyler made as to the easiest mode of producing death, etc., and these and other circumstances are admissible as indicating that it was not an insane or sudden impulse, but the culmination and effectively working out of a deliberately conceived purpose of fraud.

APPEAL from judgment of the supreme court, general term, second department, affirming judgment for defendant, entered on a special verdict and affirming order denying motion for new trial made on the minutes at Kings county circuit.

Joseph A. Shoudy, for app'lt; A. J. Perry, for resp't.

FINCH, J.-The facts of this case are unusual and extraordinary. In answer to the plaintiff's demand for the sum payable by the defendant's policy of life insurance the company took upon itself the difficult burden of proving that the assured perpetrated a deliberate fraud, planned upon a broad scale, and accomplished by taking his own life; that, his efforts to achieve success failing, and a future of poverty and debt seeming to await him, he determined to secure a large insurance upon his life, appropriate it to the payment of his creditors and the comfort and support of 1Affirming 22 N. Y. State Rep., 852.

his relatives, and reach the result by suicide. The difficult burden was successfully borne, as the verdict of the jury has determined, and the sole inquiry now is whether the scope and range of the evidence admitted, showing the acts and declarations of the assured, transcended the lawful limit or violated the rules of evidence.

The plaintiff was a creditor of the assured and stands in the case as the assignee of the policy from the date of its transfer to him. He describes as a witness the manner of its acquisition. Tyler owed him about $10,000, and upon demand of payment proposed to secure the debt by an insurance upon his life. The plaintiff assented. The conversation was in December, 1885, and in pursuance of the agreement made, the policy now sued was executed in June of the next year. By its terms the defendant constituted Tyler a "benefit member" of the "society," and agreed to pay to Fred. II. Smith, creditor, if living, if not to the heirs at law of said member" the sum insured. The plaintiff, having thus become the owner of the policy, objected on the trial to proof of the acts and declarations of Tyler as incompetent to affect or destroy the policy transferred.

The general term questioned his right, considered as an assignment carrying a vested interest, and rely upon § 18 of the Laws of 1883, under which the defendant company was organized. That section attaches the beneficial interest to the membership, and permits the member to change the payee or beneficiary of the insurance without the latter's consent. Where the right of the payee has no other foundation than the bare intent of the member, revocable at any moment, there can be no vested interest in the named beneficiary any more than in the legatee of a will before it takes effect. But the statute does not prevent a contract between the parties by force of which a vested interest does pass, in which respect the present case differs from Hellenberg v. Dist. No. One of I. O. of B. B., 94 N. Y., 580. There the designation was in the nature of an inchoate or unexecuted gift, revocable at any moment by the donor, and remaining wholly within his control. Here the transfer was as collateral security for an existing debt, and the fact brought to the knowledge of the defendant company which explicitly promised to pay the plaintiff in his charac

ter as creditor.

Granting, however, that such was the relation of the parties, we are still of opinion that no material error is shown by the record, since all the evidence to which objection was made came fairly within the res geste and the rule permitting proof of the actual transaction involved in the issue. The limitations upon that rule are easily stated, but often difficult in their application. Those limitations were well described in Tilson v. Terwilliger, 56 N. Y., 277. The declarations must be made at the time of the act done which they are supposed to characterize; they must be calculated to unfold the nature and quality of the facts which they are intended to explain; and they must so harmonize with those facts as to form one transaction. That transaction, the thing done, the fact put in issue, was the fraud, which evidently was

not a simple but a compound and continuous fact, proceeding to its result by consecutive steps, and separate acts, having necessarily an origin, a progress and an ultimate result, involving not only the intent of the assured but also his sanity, without which the responsible intent could not exist. This fraud, therefore, could be studied and proved all along the line, and in all its stages from origin to culmination formed part of the issue to be investigated. If in such a case declarations are excluded which are merely narrative of a past transaction, the residue so far as pertinent to the issue will generally and with few exceptions be admissible in evidence.

It is thus not difficult to decide that the proof of applications by Tyler to thirty-six different insurance companies, by which he secured $282,000 of insurance upon his life, and his letters and telegrams to relations and friends written and sent as steps or agencies in the consummation of his purpose, and indicating a sane and deliberate intent to consummate the fraud, which for more than a year had been in preparation, by a final act of suicide, were all admissible. But some of the evidence was more remote and approached so near to the outside boundaries of the res gesta as to require a specific and particular examination.

The defendant was allowed to prove by Henry A. Bowen that in the summer of 1885 he went at the request of Tyler to the latter's friends to raise money for him; that he failed to accomplish the purpose; that on his return he had a conversation with Tyler in which he informed him of that failure; in reply to which Tyler said he was a man who must have money, and if he couldn't raise it he would commit suicide. This was a few months before the process of insuring began, and tended to show two things, both of which were pertinent to the issue. It indicated an existing motive for the fraud in the want of money and the failure to obtain it, and the origin and occasion of the alleged suicidal intent. The declaration accompanied and characterized an act which was itself admissible in evidence, for that act indicated the then desperate character of Tyler's financial situation, and the declaration explained the operation and effect of the fact upon his mind, its force and strength as a motive to the fraud, and the presence of a thought or contemplation of suicide in a contingency which did in fact occur. The evidence serves to indicate the origin and motive of the alleged suicidal intent which grew to be the effective agency of the fraud.

In the same connection the witness was permitted to detail inquiries which Tyler made of Sutkin as to the easiest mode of producing death. These inquiries were rather acts than declarations, and show the assured in the process of acquiring information to effect easily and swiftly the destruction of his own life.

Similar testimony of an intent to commit suicide rather than endure poverty or hard labor was given by the witness Trested, but in connection with inquiries about insurance, and with an endeavor to get into a benefit society connected with the hat trade. The witness added Tyler's declaration that he intended to put a large insurance upon his life and make the boys happy.

These acts and declarations all occurred before the plaintiff took his policy as collateral, and when they affected no one but Tyler himself. They tended to show the origin and progress of the fraudulent intent, the manner of its growth and the motive from which it sprung. They indicate a sane and deliberate purpose moving steadily to its result, and constitute a part of the history of the fraud. They were contemporaneous with the fraud in its formative stages; they accompanied Tyler's efforts to raise money which failed, and to procure an insurance upon his life which he knew he could not continuously maintain. They show the motive of the fraud, and mark its progress, and harmonize so completely with all which afterward occurred as to constitute with that elements of the single transaction, the fraudulent conduct which raised the issue presented by the defense. And so I think the proof came fairly within the rule relating to the res gesto, and did not transcend its limits.

Some of this evidence was resisted upon the ground that death by suicide was no defense under the terms of the policy. That is true; but the defense was fraud, and suicide the ultimate agency by which the fraud was accomplished. It was necessary, therefore, to prove it, and in such manner as to indicate that it was not an insane or sudden impulse, but the culmination and effective working out of a deliberately conceived purpose of fraud.

We think no error was committed in the admission of the evidence upon which the jury acted, and that after due consideration of the exceptions taken to the charge, the case was fairly submitted for determination upon its facts.

The judgment should be affirmed, with costs.

All concur, except ANDREWS, J., not voting.

MICHAEL H. CASHMAN, Resp't, v. HUGH M. REYNOLDS et al.,

Appl'ts.'

(Court of Appeals, Filed October 7, 1890.)

PLEADING AMENDMENT — OF DEMURRER BY ANSWER-CODE CIV. PRO., $ 542.

A defendant cannot as a matter of right amend a demurrer by serving an answer. The court has no power to force such practice upon the plaintiff. And where on the last day to answer defendants serve a demurrer they cannot thereafter serve an answer as a substitute and amendment of the demurrer under § 542, Code Civ. Pro.

APPEAL from judgment of the supreme court, general term, first department, affirming an order of special term denying motion to compel plaintiff to accept service of an answer served as a substitute for a demurrer previously served, pending motion to overrule demurrer.

Thaddeus D. Kenneson, for app'lts; Townsend Wandell, for resp't.

O'BRIEN, J.-The defendants in this case sought, as matter of right, to amend a demurrer which raised an issue of law by the service of an answer which, if allowable, changed the issue into 'Affirming 31 N. Y. State Rep., 143.

one of fact. The plaintiff refused to receive the answer served as an amendment to a demurrer, and then the defendants invoked the powers of the court to compel him to do so. The court held that it had no power to force this practice upon the plaintiff, and the general term is of the same opinion.

As the order decided a question of power in the courts below, it is reviewable here. The amended complaint stated a cause of action against the defendants for the foreclosure of a mortgage, and on the last day that the defendants could plead to it they served a joint demurrer specifying as the defect appearing on the face of the complaint that causes of action had been improperly united. The plaintiff then gave notice of a motion for judgment, on the ground that the demurrer was frivolous, to be heard January 6, 1890. Before this motion could be heard, and on January 3, 1890, the defendants served a verified answer accompanied with a notice that the same was a substitute for and amendment of the demurrer, and that the defendants claimed the right to serve it pursuant to § 542 of the Code of Civil Procedure. Whereupon the plaintiff's attorney returned it, specifying as the reasons that as an answer it was served too late, and that as an amendment to the demurrer the defendants had no right to serve it under § 542 of the Code. The defendant's attorney then gave notice of a motion that the court by order compel the plaintiff's attorney to receive the answer as properly served in the case. The result of this motion has already been stated.

We have examined the elaborate brief submitted by the defendant's counsel in support of this appeal, calling our attention to the ancient practice in regard to amendments of pleadings, the usages of parliamentary bodies as to amendments generally, and the more recent, and it may be added, somewhat conflicting decisions of the courts in the first and second judicial departments in regard to this question. But we are satisfied that the practice which we are asked to sanction is not authorized by the statute, and that the order of the courts below was right.

When a complaint is served the defendant has twenty days in which to determine whether he has any defense to the cause of action therein stated, and if he has no defense, there is no occasion for any pleading on his part. If he has a defense and it arises out of facts not disclosed by the complaint, he can present these facts to the court by the service of an answer, or if the defense is upon the law, conceding all the facts stated in the complaint to be true, he can present that question to the court by the service of a demurrer. Both the answer and the demurrer are included in the general term pleadings, as used in the Code of Civil Procedure; but the office of the one is entirely different and distinct from the other. The answer raises an issue of fact to be determined by proofs upon a trial for that purpose, while the demurrer, conceding all the facts alleged in the complaint, raises an issue of law to be determined by the court, as the word itself implies. When a demurrer is served all other proceedings in the cause stop until the question of law raised thereon is decided.