Steinbach v. Prudential Insurance Co. of America

92 A.D. 440, 87 N.Y.S. 107

Opinions

Patterson, J.:

The plaintiff was the holder of a policy of insurance upon the life of one Max Fehrman, now deceased. That policy was made payable “ unto the executors, administrators or assigns ” of the person named as the insured in the policy—that person being Max Fehrman. This action was brought to have the policy reformed by substituting for the'Words quoted the following: “ Unto Caroline Lampp (the plaintiff), her executors, administrators or assigns.” In the action as it was constituted no one representing' the interest of Fehrman was made a party. At the trial a motion Was made to dismiss the complaint, for the reason that no one representing the. assured named in the policy was before the court. That motion was denied, and on appeal to this court the ruling of the trial court was sustained (62 App. Div. 133); but on appeal to the Court of Appeals that tribunal held that the representatives of Fehrman were necessary parties, and that without them the action could not be maintained. Therefore, the judgment of the Special Term was reversed and a new trial was granted, with costs to abide the event (172 N. Y. 471). Thereupon the plaintiff made the present motion to bring in the representative of Fehrman, which was granted on the payment of ten dollars costs..

The only matter to be considered now relates to the terms imposed for allowing the amendment, and we think they are altogether inadequate. By the decision of the Court of Appeals, costs are not absolutely given to the defendant. They are to abide the event. The defendant has litigated a question involved in the case from fhe time of the trial until the decision by the Court of Appeals, and upon that question it has been successful.- Now it is sought to change the case in the aspect in which it was disposed of by the Court of Appeals, and to deprive the defendant of the benefit of its appeals, simply upon the payment of ten. dollars. That the amount involved in the action is small cannot affect the right of the defendant to some indemnity for the expense it has been put to in prosecuting its several appeals. The order should, therefore, be modified by requiring, as a condition for granting the motion, the payment of fifty dollars. As thus modified the order should be affirmed, without costs of this appeal.

Hatch and LaughliN, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.