Montague v. Jewelers' & Tradesmen's Co. — 58 N.Y.S. 715

Majority

p. 715

MONTAGUE v. JEWELERS’ & TRADESMEN’S CO.

(Supreme Court, Appellate Division, First Department.

June 9, 1899.)

Headnote

Interpleader—Action on Insurance Policy.

Code Civ. Proc. § 820, provides that if defendant disputes a liability asserted against him by different claimants, or has some interest in the subject-matter of the controversy which he desires to assert, he can apply to have the other claimant joined as a co-defendant. A life insurance policy provided that the insurer would pay a creditor a debt owing him by assured at the latter’s death, the remainder to go to the widow. The widow notified the insurer not to pay any money to any person, except herself, without no

p. 716

tice and an opportunity to protect her rights. The insurer denied all liability on the policy. Held, in an action on the policy by the executrix of the creditor, that the denial of defendant’s motion to bring in assured’s widow was proper. - ■ ■

Appeal from special term, New York county.

Action by Clara Montague, as executrix of the will of Henry E. Droz, deceased,' against the Jewelers’ & Tradesmen’s Company. From an order denying defendant’s motion to bring .in Eachel Flint as co-defendant, he appeals.

Affirmed.

■ Argued before McLAUGHLTN, PATTERSON, O’BRIEN, and IN-GRAHAM, JJ.. ■

E. L. Mooney, for appellant.

A. C. Todd, for respondent.

The order denying the defendant’s motion to bring in Rachel Flint as a co-defendant was properly made. The action was brought against a corporation created under the laws of the state of New York, and which issued a policy of insurance, called a “certificate of membership,” upon the life of one A. F. Flint. By the terms of that policy or certificate the defendant undertook to pay within 60 days after the réceipt of satisfactory evidence of the death of Flint “to Henry E. Droz, of New York City [the plaintiff’s testator], such amount as upon the death of A. F. Flint it may be proven by said Henry E. Droz that he was indebted to him at that time, and the remainder, if any, to Rachel Flint, his wife, of Savannah, county of Chatham, state of Georgia, the sum of $5¿000 from the death fund of the company at the time of said death, or from any moneys that shall be realized to the said fund from the next assessment,” etc. Droz died in 1893, and the policy was continued in force until the death of Flint, in 1898. Droz’s executrix brought this action upon the policy, and the defendant moved, under section 820 of the Code of Civil Procedure, to bring in Mrs. Flint, the widow of the assured, as a party to the action. There were no facts set forth in the moving papers which would authorize an interpleader. The attitude in which the defendant stood on the motion was that it asserted that Mrs. Flint had an interest in the policy. At the same time it claimed that it was not liable on the policy"to any one. It insists, however, that under a'provision of section 820 of the Code it was entitled to bring in Mrs. Flint because it disputed in whole a liability asserted against it by different claimants, or that it had some interest in the subject-matter of the controversy, which interest it desired to assert, and therefore it was entitled to join Mrs. Flint as a defendant with it in the action. The only interest it seems to have is in repudiating all liability.

The contract of the defendant was directly with Droz to pay to hi.m •such sum as he shoúld prove Flint owed him, and the .balance was to be paid to Mrs. Flint. The defendant disputes any liability on that policy. Droz would have had a direct action against the company on its contract, and the plaintiff claims 'in Droz’s right. There is nothing in the papers to show that Mrs. Flint challenges Droz’s right, or makes- any claim upon-the policy, .except in subordination, to Droz.

p. 717

The affidavit on -behalf of the defendant upon which the application to bring in Mrs. Flint was made states that she claims to be entitled to the whole of the moneys due under the policy, or that, if she is not entitled to the whole, she is entitled to a portion of the same. There is no evidence whatever to support that statement, except a notice served on the defendant by a lawyer representing Mrs. Flint, which only states that the company is forbidden to pay to any other person than Mrs. Flint the sum of money due or to become due under the policy, without notice to her and an opportunity given to her to protect her interests. No claim is made by Mrs. Flint adversely to the executrix. All she asks for is notice, so that the money may not be paid until she can take steps to protect her own interests. The provision of the Code invoked by the defendant leaves it discretionary with the court to make the order, and in this case the.discretion was properly exercised in denying the motion.

- The order should be affirmed, with $10 costs and disbursements. All concur.