Substantially all the material statements in the affidavit of Mrs. Sweeney used upon the motion are upon information and belief, and the source of her information is said to be another affidavit which was filed by her husband with the defendant company, but which is not produced. We have nothing, therefore, in the record beyond the statements of Mary J. Sweeney on information and belief that the assignment to the plaintiff was by way of pledge as against the plaintiff’s positive statement to the contrary and a letter* showing the cash surrender value of the policy at the time when the. assignment was made, written to Mr. Sweeney by the company, which letter to some extent supports the plaintiff’s contention that the assignment was absolute in fact as it concededly is in form.
*173Apart, however, from this infirmity in the respondent’s papérs used upon the motion, a feature is here presented which we think should have resulted in a denial of the motion. We have called attention to the date of maturity, showing that on March 14, 1903, when the' policy became due and a demand for its payment was made by the plaintiff, the company without any risk or hazard could have paid over the amount thereof to the plaintiff. Instead, however, of complying with the obligation which was implied of making the payment promptly it delayed until, 'on April 15, 190.3, the Sweeneys intervened and filed the notice to which reference has been made;
Upon these facts we think the appellant’s contention is sound that in law a defendant is justified in asking that a third party be interpleaded only when at the. time of the . commencement of the action there are diverse claimants, each demanding of him, to the exclusion of the other, the same fund; and that it would be a hazard for him to determine which one of the claimants is entitled to the fund, and the then situation of the stakeholder and the condition is brought about without defendant’s act or connivance. Upon the motion no attempt was made to show that the company, at the time when the policy was payable or at the time when the action was commenced, had any knowledge or notice of the claim which was subsequently made by the Sweeneys. At neither time was the company in a position to bring an action of interpleader and vouch in the plaintiff and the Sweeneys as parties defendants, because at such times there was but one person, namely, the plaintiff, legally entitled to the moneys under the policy. Or, to express it differently, the company would have incurred no legal hazard or liability to the Sweeneys had it paid the plaintiff prior to April 15, 1903; and whatever hazard there was thereafter resulted from the company’s own act in withholding, without justification, payment from plaintiff.
We think it would be permitting the company to profit by its own neglect and wrong to accord the relief which has been granted and to substitute as a defendant one who, it is asserted (and nothing to the contrary appears), is an irresponsible, person, unable to pay the costs of the action if the plaintiff were finally successful. We *174think the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and .motion denied, with ten dollars costs.