131 N.Y.S. 376 | N.Y. App. Div. | 1911
Lead Opinion
This action is brought to recover upon a policy of life insurance issued by the defendant upon the life of Robert H. Pouch and made payable “to Tillie May Pouch, his wife.” After his death this plaintiff demanded payment of the policy upon the ground that she was the beneficiary therein named. One' Eliza Hargreaves, as the administratrix of the estate of Robert H. Pouch, demanded payment of the policy upon that ground. The insurance company having refused to pay the plaintiff’s claim, she thereupon brought this action and the defendant, before answer, made a motion to substitute the administratrix as a sole party defendant, and that it be discharged from liability to either claimant upon its paying into court the amount claimed in the complaint — that is, the amount of the policy, together with the interest thereon. The motion was granted and the plaintiff appeals.
The papers used upon the motion show that the claim made by this plaintiff, and that made by the administratrix, were without collusion with the defendant, and that it has no interest in the moneys due under the policy except to pay them to the person lawfully entitled to receive the same, and it cannot safely determine which one is entitled to be paid.
The appellant contends that the moving papers were insufficient to justify the granting of the order because facts
■ Section 820a of the Code of Civil Procedure took effect the 1st of September, 1908 (Laws of 1908, chap. 285), and it provides that when any sum of money shall be dué and payable under a contract and the whole or any part of it, exceeding fifty dollars, shall be claimed or demanded by adverse claimants, the debtor may bring suit in any court having jurisdiction thereof and of the parties, demanding judgment of interpleader and that the debtor be permitted to pay the amount of the debt into court and thereby be discharged from further liability. It further provides that after the commencement of the action, by service of the summons and complaint upon all the claimants, the plaintiff may make an application to the court for an order directing
The case in many respects is quite similar to St. John v. Union Mutual Life Ins. Co. (132 App. Div. 515). There the plaintiff claimed the amount due under an insurance policy and the representative of the estate of the insured also claimed it. Held, that these facts were sufficient under section 820 to warrant an order substituting the personal representatives of the deceased as defendants in place of the insurance company.
It is true there are earlier authorities, and some in this court, to the effect that under section 820 something more has to be shown than that a claim is made by a third party, without collusion of the defendant; that facts must be set forth showing there is a basis for the claim made, but it seems to me the better rule is that laid down in the authorities above cited, and for that reason I prefer to follow them. In this connection it is to be noted that section 820a was enacted subsequent to the decision of the cases laying down a different rule than that here contended for.
The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., and Mhler, J., concurred; Laughlin and Clarke,- JJ., dissented.
Dissenting Opinion
(dissenting):
The material facts are stated in the opinion of Mr. Justice McLaughlin, and it is unnecessary to restate them here.
If the order from which the appeal is taken be sustained, then a precedent is established by which the defendant in an action specified in section 820 of the Code of Civil Procedure may be changed at the will and caprice of the party originally made a defendant, and the plaintiff may be delayed in recovering money or property belonging to him and left to establish his cause of action as against an irresponsible defendant who has not even a colorable claim thereto, and with no security for costs. If there were not controlling precedents with respect' to the construction of section 820 of the Code of Civil Procedure, which have been followed by the courts and' have governed the practice of the legal profession for a great number of years, the contention that the section should not receive a construction which would require proof on the part of the .defendant making the motion for interpleader tending to show a substantial claim made adversely to that of the plaintiff, might receive serious consideration; but where, as here, a statutory provision has received- judicial construction, which has been long acquiesced in, I am of opinion that such .construction should be adhered to, and that it should be left to the Legislature to • amend the law if a change should be deemed necessary. Unless, in the administration of our law, precedents are to be disregarded, and judges and courts are- to be free to decide 1 questions of practice - and law on their own view, uninfluenced by precedents, I am of opinion that the long-established construction of section 820 of the Code of Civil Procedure should be followed.
In the case at bar the plaintiff presents a cause of action as the designated beneficiary under a policy of insurance which she holds, and the defendant applies to the court for leave to pay the fund into court and for an order substituting in its place as the. defendant the administratrix of the decedent, on whose life the policy of insurance was issued, and merely shows as a basis for the motion that such administratrix, without collusion with it, claims the insurance. The uniform practice on snch;motions throughout this State has heretofore been that
For these reasons I am of opinion that the order should be reversed, and the motion denied.
Clarke, J., concurred.
Order affirmed, with ten dollars costs and disbursements.