41 N.Y.S. 964 | N.Y. App. Div. | 1896
This action was brought upon two policies of insurance issued to one Martin J. S. de Garmendia by the defendant, the New York Life Insurance Company, payable by their terms upon the death of said de Garmendia to his executors, administrators and assigns. On the 10th of September, 1892, de Garmendia assigned by instruments in writing said policies of insurance to one William H. Emerson and on the twenty-eighth of October Emerson assigned the same to Carlos G. de Garmendia, who, on the 6th of November,
It seems to be conceded upon the part of the respondent that, in order to entitle the defendant to an order of interpleader, it is necessary that it should be shown that two persons have preferred a claim against the defendant, without its collusion, for the same debt; that the defendant has no beneficial interest in the thing claimed, and cannot determine without hazard to itself to which of the claimants the debt should be paid ; and although upon the argument it seems to be claimed that there was a difference in the requirements between the condition of proof in an action of interpleader and in a motion for interpleader, it is evident that no such distinction exists. It is true.that section 820 of the Code of Civil Procedure is silent as to the proof which the court should require in order to justify the making of an order of interpleader. It simply states what
The cases cited upon the part of the respondent in no way conflict with this rule. In all of them facts were stated from which the court could see that there was some question as to the right of the claimants; and the cases were not presented to the court upon the mere naked assertion of claims without an iota of proof tending to show that they had any foundation.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Barrett, Williams, Patterson and O’Brien, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.