Tillie May Pouch v. Prudential Insurance

Laughlin, J.

(dissenting):

The material facts are stated in the opinion of Mr. Justice McLaughlin, and it is unnecessary to restate them here.

If the order from which the appeal is taken be sustained, then a precedent is established by which the defendant in an action specified in section 820 of the Code of Civil Procedure may be changed at the will and caprice of the party originally made a defendant, and the plaintiff may be delayed in recovering money or property belonging to him and left to establish his cause of action as against an irresponsible defendant who has not even a colorable claim thereto, and with no security for costs. If there were not controlling precedents with respect' to the construction of section 820 of the Code of Civil Procedure, which have been followed by the courts and' have governed the practice of the legal profession for a great number of years, the contention that the section should not receive a construction which would require proof on the part of the .defendant making the motion for interpleader tending to show a substantial claim made adversely to that of the plaintiff, might receive serious consideration; but where, as here, a statutory provision has received- judicial construction, which has been long acquiesced in, I am of opinion that such .construction should be adhered to, and that it should be left to the Legislature to • amend the law if a change should be deemed necessary. Unless, in the administration of our law, precedents are to be disregarded, and judges and courts are- to be free to decide 1 questions of practice - and law on their own view, uninfluenced by precedents, I am of opinion that the long-established construction of section 820 of the Code of Civil Procedure should be followed.

In the case at bar the plaintiff presents a cause of action as the designated beneficiary under a policy of insurance which she holds, and the defendant applies to the court for leave to pay the fund into court and for an order substituting in its place as the. defendant the administratrix of the decedent, on whose life the policy of insurance was issued, and merely shows as a basis for the motion that such administratrix, without collusion with it, claims the insurance. The uniform practice on snch;motions throughout this State has heretofore been that *617the moving party must show facts which render it hazardous for him to admit the plaintiff’s demand and part with the possession of the fund or property, and that there is danger that such course may subject him to double liability; and this rule-has been declared by many decisions of this court, of which the cases of Steiner v. East River Savings Inst. (60 App. Div. 282); Hinsdale v. Bankers’ Life Ins. Co. (72 id. 180), and Boskowitz v. Boskowitz (124 id. 849) are examples. St. John v. Union Mutual Life Ins. Co. (132 App. Div. 515), cited approvingly by Mr. Justice McLaughlin, is in substantial accord with this rule, both on the facts upon which the adjudication was based and by the majority opinion, which contains the following statement of the rule: “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 case of Western Commercial Travelers’ Assn. v. Langeheineken (139 App. Div. 592) involved the construction of section 820a of the Code of Civil Procedure, which was a new enactment and had not been judicially construed, and although the opinion contains an intimation that it is sufficient merely to show an adverse claim, the facts upon which the adjudication was made tended to show a substantial basis for the conflicting claims and to render it hazardous for plaintiff to determine which claimant was entitled to the fund. ' •

For these reasons I am of opinion that the order should be reversed, and the motion denied.

Clarke, J., concurred.

Order affirmed, with ten dollars costs and disbursements.