THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. injury, indicates that mere indemnity to it was not intended. If there was no liability from the pulp company to the person injured, it is difficult to see how any loss could accrue to such company against which indemnity could be needed, or upon which it could be estimated. So, also, if in no event the sum paid was to become the property of the pulp company if such company was to receive it merely to the use of the injured person-such a payment could not be considered as an indemnity to the pulp company, and we can hardly suppose it was intended as such. But if the contract is to be considered as one by which the pulp company has insured the life of the deceased Provencha, the question arises whether it is a valid contract. "A policy obtained by a party who has no interest in the subject of insurance is a mere wager policy." (Ruse v. Mutual, etc., Ins. Co., 23 N. Y. 516, 523.) In Howard v. The Albany Ins. Co. (3 Den. 303) it is said, "when the assured has no interest at the time the contract is made the policy is a mere wager," etc. It may be that if the deceased Provencha had, at the time this contract was made, been under contract to the pulp company as its employee for a definite and unexpired term, so that the company would have then had a legal right to or an interest in his services, such company would have had such an interest in his life as would sustain a contract insuring it. But in the case before us it does not even appear that, at the time of the contract, Provencha was an employee of the pulp company; nor does it appear that such company ever had any definite and continuing contract for his services. For aught that appears at the time of the contract he was an utter stranger to the company. And it is quite possible that at no time was he obligated to work for the company for a longer period than through the day. Under such circumstances the policy, so far as it undertakes to pay for the lossof Provencha's life, is a mere wager. It is invalid, and the pulp company could not recover anything upon it. No recovery could be had upon it by any person without proving that, at the time the policy was issued to the pulp company, such company had an insurable interest in Provencha's life. (Ruse v. M. L. Ins. Co., above cited.) The act of 1892 (Chap. 690, § 55) has no application to the contract before us. App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. It is argued, however, that, because the policy provides that the payment to the pulp company is to be for the benefit of the person injured, such policy is not a wager, but a valid contract. I cannot see how that provision affects this question. Clearly, it was the pulp company that made the contract and procured the insurance. Even though the pulp company intended the insurance to be for the benefit of the person injured, the contract was still its contract. In no sense can it be said to have been the contract of the person injured, nor can the insurance be said to have been procured by the person injured. The pulp company did not assume to act as the agent for whomsoever should be injured, so that the contract can be deemed to have been made with the person injured and for his own benefit. The provision that the payment is to be for the benefit of the injured person cannot be given any such force as that. The contract is in the name of the pulp company and the loss is payable to it, and there is no fact in the case authorizing the conclusion that it was contracting for any person other than itself. If the contract between it and the insurance company had been a valid one it might be that a trust would arise, as between the pulp company and the person injured, to hold the amount received to such person's use. But conceding, as we must, that the insurance upon which this action is brought was obtained by the pulp company upon the life of a person in whom it had no interest, I am unable to see how any action can be maintained thereon by the pulp company or any one else. I do not see how the rule laid down in Lawrence v. Fox (20 N. Y. 268) is important in this case. A man may insure his own life and provide that the loss be paid to a party in whom he has no interest, and the beneficiary so named may recover on the policy the amount of the loss. (Olmsted v. Keyes, supra, 600.) But he may not insure the life of a person in whom he has no interest; and if he does, neither he nor the beneficiary named can recover upon it. I conclude, therefore, that whether this contract be considered one of indemnity to the pulp company, or whether it be deemed an insurance upon the life of Provencha, taken out by the pulp company, in neither view can this action be maintained. Judgment affirmed, with costs. All concurred, except LANDON, J., not sitting. THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. JOHN E. MCELROY and ALICE BELL, as Executors, etc., of JAMES C. BELL, Deceased, Plaintiffs, v. NATIONAL SAVINGS BANK of Albany and MONTGOMERY II. ROCHESTER, as Administrator, etc., of ALIDA P. BELL, Deceased, Defendants. Gift-deposit in a savings bank by a husband to the credit of his wife or himself or the survivor — on the husband's death the wife is entitled to it — delivery of the pass book is unnecessary. The deposit of money in a savings bank by a husband to the credit of his wife or himself, or the survivor of them, imports a gift to the wife in case she survives her husband. Where, under such circumstances, the husband has informed his wife of his purpose to give her the deposit, a delivery of the pass book by the husband to the wife is not necessary to perfect the gift in her; and her administrator is entitled to hold the deposit as against the executors of the husband. SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The controversy was as to who was entitled to a deposit in the. National Savings Bank in the city of Albany. The account stood in the name of Alida P. Bell or James C. Bell, her husband, or the survivor of them. James C. Bell died prior to the death of Alida P. Bell, who was his wife. etc. Isaac Lawson, for the plaintiffs. Rosendale & Hessberg, for the National Savings Bank. Albert Rathbone, for Montgomery H. Rochester, administrator,. PARKER, P. J.: I am of the opinion that the deposit by James C. Bell of the money in bank to the credit of his wife, Alida P. Bell, and himself, with the provision that either of them, or the survivor of them, was to draw it, imports a gift to the wife in case she survives him, and that delivery of the pass book to her by the husband was not necessary to perfect such gift. The principle decided in Sanford v. Sanford (45 N. Y. 723, and again in 58 id. 69) seems to be applicable to the facts before us, and to so hold. (See, also, Foirler v. But terly, 78 N. Y. 68, 72; Scott v. Simes, 10 Bosw. 314.) App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. The intent of the husband to that effect is very plain, and it seems that the wife had been informed of his purpose, and expected to receive the benefit of it. The only question is whether he had fully perfected the gift by the delivery which the law requires. None of the cases cited by the plaintiffs' counsel are necessarily in conflict with the principle decided in the cases above cited, and I consider them authority for the conclusion which I reach. A judgment should be entered directing that upon the death of James C. Bell the balance in the bank to the credit of himself and Alida P. Bell became the property of Alida P. Bell, and that, upon her death, the defendant Rochester became entitled to the same as assets of her estate. All concurred. Judgment directed in favor of the defendant Montgomery H. Rochester. MATILDA H. REYNOLDS, Appellant, v. THE WESTCHESTER FIRE INSURANCE COMPANY, Respondent, Impleaded with Another. A parol contract of insurance is valid - release upon the settlement of a loss procured by fraud in an equitable action to avoid the release, and recover the loss the plaintiff need not restore the release price if she offers to allow credit for it. A complaint alleged that, in consideration of the prepayment of a certain sum to the defendant, it agreed by parol to insure the property of the plaintiff in the sum of $3,400, the loss, if any, to be payable to the mortgagee; that the form of the policy to be issued was agreed upon, but that none was issued and that a loss occurred; that, through the fraud of an agent of the defendant, the plaintiff settled the loss upon payment of $1,000, which was paid by the defendant to the mortgagee, and that the plaintiff thereupon released the defendant. The plaintiff demanded judgment that the release and settlement be vacated and that she recover the amount actually due upon the parol contract, offering to give the defendant credit for the payment of $1,000. The trial court dismissed the complaint, holding that the action could not be maintained, because the $1,000 payment had not been restored to the defendant. Held, that this view was erroneous; That the parol agreement to insure, made in consideration of the prepayment of the premium, constituted a valid contract of insurance; but that, so long as the release was outstanding, the plaintiff could not recover upon that contract; 25 APP. DIV.-VOL. VIII. THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. That the plaintiff, having of necessity resorted to a court of equity to remove the bar of the release, might, on establishing her right to set aside such release, proceed further to prove and recover upon the contract of insurance without restoring the $1,000, her claim being in excess of that amount, and the action being of such a nature that all the equities of the parties could be fully adjusted by the judgment therein. APPEAL by the plaintiff, Matilda H. Reynolds, from a judgment. of the Supreme Court in favor of the defendant, The Westchester Fire Insurance Company, entered in the office of the clerk of the county of Saratoga on the 6th day of February, 1896, upon the dismissal of the complaint upon the opening at a Trial Term of the Supreme Court, and also from an order entered in said clerk's office on the 6th day of February, 1896, upon which the judgment was entered. Jenkins & MeArthur, for the appellant. Lewis E. Griffith, for the respondent. PARKER, P. J.: The substance of the averments in the plaintiff's complaint is: that in January, 1893, she entered into a contract with the insurance company defendant, that in consideration of thirty dollars and fifty-six cents previously paid to it by the plaintiff, it, such company, would insure her against loss or damage by fire on certain specified property until noon of March 20, 1895, in the sum of $3,400; loss, if any, to be paid to Arthur W. Sherman as mortgagee, as his interest might appear, the balance to be paid to the plaintiff – the further terms of the insurance, and of the policy to be issued, to be similar to those contained in the form of policy known as "Standard Fire Insurance Policy of the State of New York;" that such contract was to be at once reduced to the form of a written policy and delivered to her by said company; that subsequently, on February 26, 1893, a fire occurred which destroyed the property so insured, and that she sustained loss and damage to the amount of $2,900. We must assume upon this appeal that all the averments of fact in the complaint are true. (Sheridan v. Jackson, 72 N. Y. 170172.) And it, therefore, appears that at the time of the fire there was a contract of insurance existing, under which this defendant was liable to pay the loss accruing to this plaintiff to the extent of |