Opinion
No. 44/759.
06-24-1918
G. P. FARMER COAL & SUPPLY CO. et al. v. ALBRIGHT et al.
Kellogg & Chance, of Jersey City, for complainants. Durand, Ivins & Carton, of Asbury Park, for defendant Albright. Dickinson & Bodine, of Trenton, for defendant New York Life Ins. Co.
Action by the G. P. Farmer Coal & Supply Company and others against Mayme H. Albright and others, in which defendant New York Life Insurance Company interpleads by cross-bill or counterclaim. Motion made to strike out cross-bill or counterclaim. Crossbill permitted to stand.
The bill disclosed this state of facts: The complainant G. P. Farmer Coal & Supply Company issued an attachment out of the Monmouth circuit against A. Fred Albright, and levied upon a policy, on his life, payable to his wife, Mayme H. Albright, issued by the defendant New York Life Insurance Company. The complainant Leon R. Taylor was appointed auditor, and upon his report judgment was entered in the action. The assured is now deceased, and his widow lays claim to the insurance. The contract of insurance was made in the state of New York, and its laws subject life insurance to the claims of creditors. The insurance company has refused to make payment because of the uncertainty of the rights of the rival claimants. The prayer is that the money be ordered paid into court upon delivering up of the policy, and that the proceeds be applied to the payment of the complainant's judgment. Mayme H. Albright, the beneficiary, is made a party defendant, and has answered, contesting the complainants' right and joining in the prayer that the moneys be paid into court. The New York Life Insurance Company, in its answer, assumes a neutral position towards the parties, and by cross-bill or counterclaim interpleads, and has paid the insurance money into court. Motion is made to strike out the cross-bill or counterclaim.
Kellogg & Chance, of Jersey City, for complainants. Durand, Ivins & Carton, of Asbury Park, for defendant Albright. Dickinson & Bodine, of Trenton, for defendant New York Life Ins. Co.
BACKES, V. C. (after stating the facts as above). This bill is in aid of proceedings at law, and in effect is in the nature of a bill of interpleader to settle rival claims to a fund. All parties in interest are joined in the suit, and in the circumstances a crossbill of interpleader was unnecessary for the protection of the stakeholder. It is not necessary to file a bill of interpleader where the holder of a fund is already a party to a suit in equity, brought by one claimant against the other, to settle the right to the fund in his hands. Barbour's Chancery Practice (2d Ed.) vol. 2, p. 120; Daniel's Chancery Practice (6th Ed.) p. 1567; 23 Cyc. p. 5; Lane v. New York Life Insurance Co., 56 Hun, 92, 9 N. Y. Supp. 52. A point is made of the fact that at the time the cross-bill was filed the defendant Mayme H. Albright had not filed her answer submitting her claim to the jurisdiction of the court, and that, as the cause then stood, it afforded no protection to the insurance company as against her possible suit at law upon the policy. This is inadmissible, for the reason that the court would have restrained her from such proceedings, upon the filing of a petition in the cause. Badeau v. Rogers, 2 Paige (N. Y.) 209.
The cross-bill will be permitted to stand as an answer and as a petition for permission to pay the money into court, and to be discharged. Such is the practice that should have been followed. A decree may be entered, as moved, that the policy be surrendered, and the company be absolved from further liability thereon, and that it be dismissed from the suit. As the defendant was brought into court and required to answer, not because of any default on its part, it is entitled to its costs. A counsel fee of $50 will be allowed out of the fund, to be taxed as part of the costs, and to be eventually restored by the unsuccessful party.