Lane v. New York Life Ins. Co.

• Decision Date: 14 February 1890
• Citation: Lane v. New York Life Ins. Co., 9 N. Y. S. 52 (N.Y. Super Ct. 1890)
• Parties: Lane v. New York Life Ins. Co. et al
• Court: Superior Court of New York

9 N.Y.S. 52

Lane v. New York Life Ins. Co. et al

Supreme Court of New York, General Term, First Department

February 14, 1890

Appeal from special term, New York county.

Action by Marietta L. Lane, as executrix, against the New York Life Insurance Company and another.The insurance company appeals from an order denying a motion for leave to deposit in court the fund in dispute.

Order reversed, with $ 10 costs.

Hornblower & Byrne, (James Byrne, of counsel,) for appellant.

Billings & Cardozo, (Coles Morris and Edgar J. Nathan, of counsel,) for respondents.

Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ. All concur

OPINION

Van Brunt, P. J.

This action was brought by the plaintiff against the New York Life Insurance Company and one Malvina A. de Metz, a respondent herein, to determine the rights of the plaintiff to a certain fund in the hands of the defendant company.The complaint alleges a willingness on the part of the company to pay this money, and then alleges a notice upon the part of the defendant De Metz to the defendant the insurance company to withhold the payment of such amount from the plaintiff, and thereby prevented the plaintiff from collecting and receiving such amount.The complaint further alleges "that said amount has been retained and is now in the possession of the defendant the New York Life Insurance Company to abide the event of this action, by reason of the said acts of the defendantMalvina A. de Metz, and for that reason the said Malvina A. de Metz is made a defendant herein."The complaint prays judgment that the plaintiff be adjudged to be entitled to said sum of money, and that the defendant company be adjudged to pay the same to the plaintiff.The defendant De Metz answered, setting up her right to the fund in question, and praying judgment that the company be adjudged to pay the same to her.The defendant company, upon this state of facts, made application to the court to be allowed to pay the said fund into court, and to have the action discontinued as to it.This motion was denied, upon the ground that the court had no power to grant the same, and from the order thereupon entered this appeal is taken.

It is evident that the motion was denied upon the ground that the only power of the court to intervene arose from section 820 of the Code of Civil Procedure, which provides that a defendant against whom an action to recover upon a contract or an action of ejectment, or an action to recover a chattel is pending, may at any time before answer, on proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property, have an order for the substitution of that person in his place upon giving proper notice.It is apparent that the case at bar does not come within the provisions of section 820, because both the claimants to the fund in question are parties to the action.But it is to be observed that that section was intended to apply to actions at law and not to actions in equity.The provision is that a defendant against whom an action to recover upon contract is pending may obtain an order of substitution.This action is not upon contract.It is brought for the purpose of settling rival claims to a fund...