APPEAL by the plaintiff, Tillie May Pouch, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1911.
Seth Bird, for the appellant.
William O. Campbell, for the respondent.
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
were not stated showing the basis for such claim; in other words, that facts must be set forth which indicate that the defendant is really placed in peril with reference to making payment to either claimant. To require such proof before bringing in a third party claimant is to read into section 820 of the Code of Civil Procedure something that does not there exist. That section provides that a defendant against whom an action to recover upon a contract is pending, may, at any time before answer, 'upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt, * * * without collusion with him, 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.' Here, the proof is that the plaintiff and the administratrix of the person whose life was insured both claim the amount of the policy; that such claims are made without collusion with the defendant, and this brings the case squarely, as it seems to me, within the provisions of the Code and entitled the defendant to the order appealed from. The construction thus given to the section not only seems to be reasonable, but to do justice. The defendant has no interest in the matter except to pay the money to the person legally entitled to receive it. It is willing to make the payment and simply asks that the claimants fight out, as between themselves, their respective claims. This being so, why should it not, upon paying the money into court, be relieved?
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 due 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
plaintiff to pay the amount of the debt into court and thereby be discharged from further liability to the defendants; and that the court, upon satisfactory proof by affidavit or otherwise of the facts alleged in the complaint, and that the whole or part of the debt is claimed adversely by the defendants, without any collusion on the part of the plaintiff, and that the amount is not in dispute, may make an order, upon plaintiff's making such payment, relieving the plaintiff from further liability. Under this section this court recently held ( Western Commercial Travelers' Assn. v. Langeheineken, 139 A.D. 592) that the plaintiff was not required to show there was a basis for the adverse claims, but simply that the whole or part of the debt is claimed adversely by defendants, without collusion on the part of plaintiff. The language of this section, so far as the proof is concerned, is substantially in all respects similar to that used in section 820, and no reason can be suggested why one should be required to make more proof in the one case than in the other.
The case in many respects is quite similar to St. John v. Union Mutual Life Ins. Co. (132 A.D. 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 ...