St. John v. Union Mutual Life Insurance

132 A.D. 515, 117 N.Y.S. 1077, 1909 N.Y. App. Div. LEXIS 1532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1909
• Status: Published

Opinions

Kruse, J.:

I think the order should be affirmed.

Section .820 of the Code of Civil Procedure provides that in certain actions, among others such as this, a defendant 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 or property, without collusion, 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, by paying the amount of "the debt into court. While a mere naked demand is . not sufficient to warrant the order,, I think the affidavits upon which the order was granted are sufficient to show the nature -of the claim and that there is reasonable doubt, as to the right of the plaintiff to the insurance moneys, as against the adverse claimants. Under such circumstances, the insurance company, should not be subjected to the hazard of .determining which is rightfully entitled thereto.

The order should be affirmed, with ten dollars -costs .and disbursements.

All concurred, except Williams and Robson, • JJ., who dissented in an opinion by Williams, J.