Natowitz v. Independent Order Ahawas Israel

133 N.Y.S. 1065 | N.Y. App. Div. | 1912

McLaughlin, J.:

One Joseph N. Natowitz, who died on the 10th of June, 1911, was at and for some time prior to his death a member of the defendant. Under its constitution the defendant, a fraternal organization, pays a death benefit or endowment of $500 upon the death of a member to the person or persons entitled to receive the same. The plaintiff, a son, has brought this action to compel the payment of this amount to him on the ground that he is entitled to receive it. The widow of the deceased member has commenced an action against the defendant in the Municipal Court of the city of New York to recover the same sum on the theory that she is entitled to it. The defendant admits its liability to pay the $500 but is in doubt to which one to make the payment. Before answering, the defendant made a motion to interplead the plaintiff in the Municipal Court action and substitute her in its place in this action, and upon paying said sum into court that the Municipal Court action be stayed and it be relieved from all liability. The motion was denied and it appeals from the order.

I think the motion should have been granted. The widow and son both claim to be entitled to recover the same fund. Defendant concedes its liability to one or the other and is willing to discharge it. It is not liable to both. No good reason is suggested why the widow and son should not litigate between themselves as to their respective rights, or why the defendant should be put to the trouble and expense of carrying on litigation, the ultimate purpose of which is to settle such rights.

The facts set out m the papers used upon the motion bring the case squarely within the provisions of section 820 of the Code of Civil Procedure, which provides that where an action has been brought to recover upon a contract a defendant, at any time before answer, on proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property, without collusion with him, may apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place and to discharge him from liability to either, on his paying into court the amount of the debt. There is nothing to indicate that the defendant, in making the motion, did not act in entire good faith or that it is in any way in collusion with the plaintiff. Pouch v. Prudential Ins. Co. (146 App. Div. 612) and St. John v. Union Mutual Life Ins. Co. (132 id. 515) are directly in point.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Clarke, Laughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.