19 N.Y.S. 73 | N.Y. Sup. Ct. | 1892
Lead Opinion
By the certificate issued to Anton Dobler the sum of $2,000 was payable upon his death to Babette A. Dobler, his wife. Subsequently Anton Dobler revoked the direction under which this certificate was issued, and directed the payment of the beneficiary fund to be made to Charles Dobler, his son. Subsequently Anton Dobler revoked the last direction, and directed the payment of the fund to be made to Frank Joseph Anton Dobler and Tillie Dobler, his son and wife, share and share alike. It also appeared that Till ie Dobler was not the lawful wife of Anton Dobler, and that Babette A. Dobler, as the wife of Anton Dobler, claims the fund, and has demanded payment thereof. There is no intimation that there is any collusion between the defendant and the claimants of this fund, and we think that a proper case is made out for an interpleader, and that the claimants be substituted as defendants in this action upon payment into court of the amount claimed. The complaint, however, demands judgment for the sum of $2,000, with interest thereon from December 28, 1891, and the order provides that the defendant pay to the chamberlain of the city of New York, to the credit of this action, the sum of $2,000, within 10 days from the entry of the order. Before the defendant can be discharged from liability, it must pay into court the amount claimed by the plaintiffs, and the order must therefore be modified so that the defendant pay into court, in addition to the sum of $2,000, interest thereon from the 28th of December, 1891, to the date of payment.
Dissenting Opinion
1 dissent. I am of the opinion that parties should not be brought in without notice to them.
This action was commenced to recover the sum of $2,000 under a beneficiary certificate issued by the defendant on the life of one Anton Dobler. The plaintiffs’ right to recover is based upon the fact that they are the ones designated as the beneficiaries in the policy. The defendant, while admitting its liability, seeks to have substituted as defendants, in its place and stead, by an order of interpleader, the wife and minor children of Dobler. Upon the defendant’s own affidavits, as to the extent of the claim advanced adversely to plaintiffs, it is extremely doubtful, to say the least, if any such state of facts is presented showing a right to an order of interpleader. The rule is now settled that there must be some reasonable foundation for a claim asserted to entitle a defendant, while admitting its liability, to have such claimants substituted by order of interpleader. In other words, the question upon a motion of this character is as to whether or not there is a reasonable doubt as to the safety of the stakeholder in paying over the money. As stated by Mr. Justice Van Brunt, in Bank v. Yandes, 44 Hun, 55, such reasonable doubt must be supported by proof raising a question upon which the court may pass judicially, and the claim must have some foundation in law. Assuming, however, that it were in other respects a proper ease for an order of interpleader, we think upon other grounds, apparent upon the rec-ord, the order should not be granted. Section 820 of the Code of Civil Procedure provides, in terms, that a defendant may apply to the court, upon notice to the plaintiffs and to the person making the claim, for an order of substitution or interpleader. Here the defendant’s affidavits and notice of motion show that the application is to the court for an order that Babette Anna Dobler, Charles Dobler, Anton Dobler, Albert Dobler, Tillie Maehlein, Herman Dobler, Elizabeth Dobler, and William Dobler be interpleaded in the action. Of these persons four are infants, upon whom service of the notice of motion was not made. The order appealed from, however, without such no
" Another omission in the order, as shown by Mr. Justice Ingraham, was-the failure to provide for payment into court, in addition to the principal, of the interest on that sum. The order appealed from requires that the entire principal should be deposited in court, although in respect to the claim of one of the plaintiffs, Frank Joseph Anton Dobier, who claims one half, no adverse claim is suggested; and, in the absence thereof, it would seemingly have been the proper thing to have directed the payment of one half of the amount to him, though the court might have been of opinion that as to the balance it should have been deposited. For these reasons we are of opinion that the-order appealed from should be reversed, with $10 costs and disbursements.