Sibley v. Equitable Life Assur. Soc.

3 N.Y.S. 8 | The Superior Court of the City of New York and Buffalo | 1888

Per Curiam.

We do not think that the court had power by an order to discharge the defendant from liability to the plaintiff without payment of the amount which, was due upon the policy,"and interest from the 1st of October, 1887. This interest was, under the complaint in this action, as much a part of the demand of the legal owner of the policy of insurance as the amount required to be paid by *9the policy. If the company desired to relieve itself from the obligation to pay interest, it could have commenced an action for an interpleader. Instead of commencing such an action, the company, after having refused to pay the plaintiff, did nothing until it was sued, and in the mean time retained the money. So, if in point of fact the company has an equitable defense against plaintiff’s claim for interest,' it must remain a party to the action, and set forth such defense by answers. As the case stands at present, the order should only be granted on the payment into court of the amount admitted to be due, with interest up to the time of payment. .

The order appealed from should be modified by requiring the defendant to pay the sum of $10,142, with interest thereon from October 1,1887, to the date of the payment of the principal sum. The appellant should have $10 costs, and disbursements of this appeal.

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