G. P. Farmer Coal & Supply Co. v. Albright

89 N.J. Eq. 283 | New York Court of Chancery | 1918

Backes, V. C.

This bill is in aid of proceedings at law and in effect is in the nature of a bill of interpleader to settle rival claims to a fund. All parties in interest are joined in the suit, and in the circumstances a cross-bill of interpleader was unnecessary for the protection of the stakeholder. It is not necessary to file a bill of interpleader where the holder of a fund is already a party to a suit in equity, brought by one claimant against the other, to settle the right to the fund in his hands. 2 Barb. Ch. Pr. (2d ed.) 1-20; Dan. Ch. Pr. (6th ed.) 1567; 23 Cyc. 5; Lane v. New York Life Insurance Co., 56 Hun 92. A point is made of the fact that at the time the cross-bill was filed, the defendant Mayme H. Albright had not filed her answer submitting her claim to the jurisdiction of the court, and that, as the cause then stood, it afforded no protection to the insurance company as against her possible suit, at law upon the policy. This is inadmissible, for the reason that the court would have restrained her from such proceedings, upon the filing of a petition in the cause. Badeau v. Rogers, 2 Paige 209.

The cross-bill will be permitted to stand as an answer and as a petition for permission to j)ay the money into court and to be discharged. Such is the practice that should have been followed. A decree may be entered, as moved, that the policy be surrendered and the company be absolved from further liability thereon, and that it be dismissed from the suit. As the company was brought into court and required to answer, not because of any default on its part, it is entitled to its costs. A counsel fee of $50 will be allowed out of the fund, to be taxed as part of the costs, and to be eventually restored by the unsuccessful party.