Windecker v. Mutual Life Insurance

43 N.Y.S. 358 | N.Y. App. Div. | 1896

Ward, J.

As neither the Mutual Life Insurance Company nor Ellen Pickert, as administratrix, has appealed from the judgment entered upon the decision' of the trial court, the objections urged by them respectively cannot be considered upon this review. We will, therefore, examine only the objections taken by the appellant to the procedure below.

The appellant vigorously assails the conclusions of the trial court in regard to the refusal of the plaintiff to account to Mrs. Pickert for his expenditures and his claim of absolute ownership of fire-policy and its proceeds. An examination of the evidence upon this subject discloses considerable evidence sustaining the contention of each party, but we are not able to find such a preponderance in favor of the appellant’s contention as will justify us in overruling the conclusions of the trial court upon this question of fact, that court having had the witnesses before it and being in a better position to judge as to where the truth rested in the conflicting testimony.

The appellant also claims that this action as originally brought against the defendant, the Mutual Life Insurance Company, was simply an action at law to recover the money that became , due upon the death of ■ Solon S. Pickert, and that it still retains its character as a legal action notwithstanding the order of interpleader, an.d that the trial court erred in not giving judgment to the plaintiff for the whole' amount in the hands of the insurance company in the plaintiff’s favor, because the plaintiff Was entitled, under the contract and assignment from Solon S. Pickert, to recover the whole amount in the first instance.

By the order of interpleader and the service of the supplemental complaint and answer creating equitable issues, this action, if it ever had the character of a legal action, ceased to he such and became an action in .equity. - (Dinley, as Administratrix, etc., v. McCullagh, 92 Hun, 454; Clark v. Mosher, 107 N. Y. 118.)

Section 820 of the Code of Civil Procedure is a substitute for the old action of interpleader and is governed by the same principles. .(Schell v. Lowe, 75 Hun, 43; Wenstrom Electric Co. v. Bloomer, 85 id. 389; Pustet v. Flannelly, 60 How. Pr. 67.)

The appellant further claims that he was entitled to costs, as a matter of course, upon his ■ recovery, and the trial court erred in refusing them to him and also erred in imposing costs upon him in favor of the defendant Ellen S. Pickert.

■ This being an equity action, as we have seen, the costs were in the discretion of the trial court, and the case was tried and disposed of upon equitable principles. The insurance company procured the proper order of interpleader and remitted the contest to the real parties in interest in the fund, the plaintiff and the administratrix. The trial court probably awarded costs against the plaintiff because of his refusal, as. found by it, to adjust his claim and of his insisting upon the absolute ownership in himself of the subject o-f the litigation, and thus compelling the administratrix to bring an action against the other defendant, which resulted in the consolidation. of the actions originally brought, through the order of interpleader.

We are unable to find in the record sufficient reasons for overruling the discretion of the trial' court upon ' .the subject of costs. ’ (Hodgkins v. Mead, 25 N. Y. St. Repr. 937; Pickert v. Windecker, 73 Hun, 485.)

The plaintiff also complains that the trial court did not require the insurance company to pay interest upon the $1,500 from the time the claim became payable under the policy, after the death of Pickert, to the commencement of this action, a period of about seven months. It is not perceived how the plaintiff is injured by this result. The judgment awards the plaintiff all that he is entitled to for the amounts expended by him and the interest, and if interest had been charged upon the company for the period mentioned, it would only have swelled the amount to which the administratrix was entitled under the judgment, and if error were committed in that regard, she is the only sufferer, and she cannot be heard to complain here as she has not appealed from the judgment.

The appellant further claims that the costs that were awarded to the plaintiff in this action, and to other parties as defendants upon the trial and upon the appeal in the ■ partition action,- should have been allowed by the trial court and deducted from the amount awarded to Mrs. Pickert as a set-off or counterclaim. We are at loss to discover upon what principle this contention can rest. The judgments for costs were joint judgments in favor of the plaintiff here, and defendant there, and other parties, and the proposition here is to set off joint judgments in favor of the plaintiff and others against the individual claim of Solon S. Pickert, deceased, as represented by his administratrix. A joint debt cannot be set off or counterclaimed against an individual debt. (Campbell v. Genet, 2 Hilt. 290; Compton v. Green, 9 How. Pr. 228; Newell v. Salmons, 22 Barb. 647.) This could not be done under the old Statute of Set-Offs. (2 It. S. 354, § 18.) Counterclaim embraces set-off and recoupment. (Pattison v. Richards, 22 Barb. 146.) And our Statute of Counterclaims is still broader, but it does not authorize a joint obligation to be set off against an individual one. (Code Civ. Proc. § 501.)

Again, the judgment for costs on the appeal was in effect a judgment against Ellen Pickert individually, as it arose after the death of Solon S. Pickert, and the plaintiff’s claim for costs could not be counterclaimed against it. (Mullen v. Guinn, 88 Hun, 128.)

Section 3246 of the Code of Civil Procedure, cited by plaintiff’s counsel, has no application to this case. (88 Hun, supra.)

An independent counterclaim as against the- counterclaim in the answer set up in the reply will not be sustained, but will be stricken out'upon motion. (Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civ. Proc. Rep. 265.)

The attempt to litigate extraneous matters in such an action as this is contrary to the spirit and purpose of an action of interpleader. In that action a-specific matter is put forth as the-ground of contention. One party, as it were, holds a particular stake of- property subject to the contention of others who claim that, same property. The contest proceeds between the claimants to the specific property involved and as to that property alone. To permit outside issues and matters affecting the claimants, but not connected with the subject of the action, would confound the action and lead to confusion, and compel the stakeholder to be a party to litigation in which he had no -concern, and it cannot he tolerated.

Finally, we are met with objection of the plaintiff that under Schedule “ B ” the representative' of Solon S. Pickert is not entitled to any relief out of the fund in controversy because of the covenant of Solon to give a deed with warranty Upon -the death of his father, .of the laud upon which the $500 was paid. The remarks just made about matters foreign to the subject of interpleader being injected into this action are applicable here. Whether there was a breach of this.Covenant, and, if so, what w.as the effect of such breach upon the lights of Pickert, does not seem to have been specifically raised by the pleadings or litigated upon the trial. So far as the evidence went upon that subject, the plaintiff, with regard to the $500 investment, seemed to have been content with the price received for the land that had passed out of his ownership and possession, and the administratrix upon the trial made no claim to recover the land, but only her proportion of the-insurance money.

. If this were an action for the reassignment of the policy it might be urged with some force that the execution of this deed was a condition precedent to the right for a reassignment, but in this action the administratrix did not seek for a reassignment of the-policy or to recover the land, but to recover the money which belonged to her in equity. A reassignment of the policy was not necessary to reach this result. In equity the plaintiff had a mortgage or lien upon this fund for his advances, and.when that lien was satisfied the balance of the fund belonged to .the administratrix. ■ ■

■ The claim of the plaintiff, that under Schedule “ B ” he has the right to hold all this fund indefinitely to meet some possible infirmity in the title to the land, in view of the facts above stated, and the further fact that his title has been sustained in an action in this court between the proper parties (73 Hun, supra), cannot and should not prevail. It is purely technical. Another deed was unnecessary, as the ¡Dlaintiff’s title was perfect under Schedule “ B.” The covenants of warranty in another deed would not strengthen that title, and, besides, the party who should execute such a deed with the covenants, was. dead. At all events, if we are to consider the question here, it should have been embraced within the issues, and passed upon at the trial.

There was no difficulty in' the trial court apportioning the fund in, the hands of the insurance company according to the equitable rights of the parties. The fund was held by the company, subject to the control of the court. The court may fasten upon this fund in whole or in part any equitable lien or trust which one of -the parties may have established though the proprietary legal title is in the other.

' The court should so shape its decree and distribute the fund as to do complete equity between the parties. (Whitney v. Cowan, 55 Miss. 626.) And such was the result in this case.

The judgment appealed from should be affirmed, with costs to be paid by the appellant to the respondent Ellen Piekert, as administratrix, and also to the insurance company.

All concurred.

Judgment affirmed, with one bill of costs to each respondent to be paid by the appellant.