70 N.Y.S. 767 | N.Y. App. Div. | 1901
; The ground of the demurrer is-that the third separate defense in the supplemental answer is insufficient in law on the 'face thereof! The.action was begun in .the year-1888, and is in aid off an attach^ment. In the original complaint it is set forth that the defendant had issued to one Thomas. J. Hurley a policy of life insurance of the kind known as the semi-tontine policy, and that the dividend period on said policy-expired in October, 1888 that, the terms -of the policy were such that if the same should be in- force and the said Hurley be .living when the- dividend.,period .expired,, the full-cash value of the policy would become payable at that time to Hurley; that the Columbia Bank was a creditor, of Hurley, and that it brought an action against him in the Superior Court in the city of New York to recover a-, certain definite sum off money, and that on the 31st day of March, 1887, a warrant of attachment'was-issued out of the said court.by which the sheriff .was. commanded to
The defendant in its original answer admitted the issuance of the policy to Hurley and that certain attachment papers were served upon it; that if Hurley survived the 8tli of October, 1888, and had exercised the privileges secured to him by the policy, the full cash value would- have been $2,835;3P, but it denies that said sum was on that day due and payable to Hurley in accordance with the terms of the policy; it admits that it received in October, 1887, and April, 1888, sum's "in payment of the premiums on the policy due and payable at those times and that the policy would have lapsed and become valueless if they had not been paid, but it alleges that it had no knowledge or information sufficient to form a belief as to whether the
The direct object of the defense set up in this supplemental answer is to show that at the time the attachment was issued against
It is manifestly the duty of the insurance company to pay the amount due upon the policy to the real owner of it, or to Whomsoever may have acquired a paramount lien upon it or monéy payable under and according to its terms. The court below "held that the assignment of the policy by Hurley to his children in 1882 operated by a change of title and ownership to prevent a lien attaching under the process issued by the Columbia Bank. The contention of the plaintiffs is that, in the absence of notice to the defendant of the assignment before the commencement of the action, a lien was secured in favor of the Columbia Bank by due service of the attachment on the defendant, and that as a consequence the defendant could not be held liable to. the children of Hurley, for the payment of the amount due on the policy to the sheriff under his levy.
We are referred to adjudications made in. other jurisdictions, in which it has been held that to perfect an assignment of a chose in action as against bona fide creditors of the assignor, notice of the assignment must be given to the debtor within a reasonable time, and that unless given, creditors may attach and acquire a valid lien. But a different rule seems to prevail in this State. (Williams v. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 id. 108 ; Fortunato v. Patten, 147 id. 277.)
The learned counsel for the appellant contends that the cases cited are not applicable, because an equitable rule Was announced therein, and the courts were only considering the question as it arose in suits in equity; that in this action purely legal rights and relations are involved. We concur, however, with the learned judge below in the view that “ the effect of the notice is independent of the •form of the action adopted to enforce the assignment.” In Williams v. Ingersoll (supra) the case of Muir v. Schenck (3 Hill, 228) is cited with approbation, and it is remarked : “ However much that case may have been criticised elsewhere, it has been considered well decided
. Here the defendant setting up the prior right of Hurley’s children by supplemental answer, we must assume has received notice of it pendente lite, inasmuch as the court has permitted such an answer to be served, and the defendant has availed itself of the prior right of the assignees to discharge itself from this action.
. The other points suggested by the learned counsel for the appeL lants do not seem to require especial consideration, and the interlocutory judgment should be affirmed, with costs.
Ingraham, McLaughlin, Hatch and Laughlin,- JJ., concurred;
■ Judgment affirmed, with costs.