Montague v. Jewelers & Tradesmen's Co.

58 N.Y.S. 715 | N.Y. App. Div. | 1899

Patterson, J.:

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 sixty days after the receipt 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. Five Thousand Dollars $5,000. From the death fund of the com-}3any 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 him :such sum as lie should 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. 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 jiro vision 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 ten dollars costs and. disbursements.

O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.