Silva

The question presented on this appeal is whether a surviving partner was entitled to retain as his own the proceeds of insurance on the life of his deceased partner or whether he was required to account for such proceeds as part *652 of the assets of the partnership. The trial court’s determination was in favor of the surviving partner.

The plaintiff is the administratrix with the will annexed of the deceased partner, Barney Silva. In the life insurance policy Barney Silva was named as the insured; the defendant, Jerome H. Cohn, then Silva’s partner, was designated as the applicant and the right to change the beneficiary was reserved to him. 1 Cohn was named as the beneficiary of the policy and his relationship to the insured was stated to be that of a partner. The policy was issued as of August 7, 1958. Silva died on March 17, 1959.

At the trial, the defendant was called as a witness by the plaintiff under the provisions of section 2055 of the Code of Civil Procedure. He testified that he and Silva had been engaged as partners in the operation of three restaurants. In the summer of 1958, the partners decided to purchase some life insurance and contacted Nat Teller, an insurance…