(dissenting):
This is a suit in equity by the widow of Harry Schoenholz to have it declared that she is the equitable owner of a policy of insurance issued by the defendant bn the life of her husband payable, in the event of his death before a date specified, to his sister, the defendant Sarah Schoenholz, who was designated the beneficiary, and to have the designation of the beneficiary named therein canceled and declared null and void, and to have it adjudged that the insurance company pay the proceeds of the policy to the plaintiff. The policy gave the decedent the right to change the beneficiary without her consent and to assign the policy, and contained provisions regulating a change of beneficiary and an assignment of the policy; but did not provide that compliance therewith should be a condition precedent to the validity of a change of beneficiary or of an assignment of the policy or that a change of beneficiary or an assignment without compliance therewith should be void. The insured died on the 24th of March, 1918, without having changed the beneficiary or having made a written assignment of the policy in the manner prescribed therein. The beneficiary designated in the policy was a resident of Austria and has been served by publication in the manner provided for such service by the'Code of Civil Procedure, but she failed to appear. (See Code Civ. Proc. § 438 et seq.; Id. § 440, as amd. by Laws of 1918, chap. 309.) On a former trial of the issues the complaint was dismissed on the theory that this is not an action in rem and that the court did not acquire jurisdiction over the beneficiary. We held that it is an action in rem for an adjudication with- respect to the *97ownership of the policy which was within the jurisdiction of the court, and that the court acquired jurisdiction for that purpose over the beneficiary by service by publication, and that there was an equitable assignment and delivery of the policy to the plaintiff by the insured for a good and valuable consideration, namely, her agreement to marry him, and to pay the premiums, which she did, and the judgment was reversed and a new trial granted. (Schoenholz v. New York Life Ins. Co., 192 App. Div. 563.) The evidence on the new trial is substantially the same as on the former trial; and the points now presented by the appellant are substantially the same as those presented on the former appeal, namely, that the court did not acquire jurisdiction over the beneficiary and that the assignment of the policy was invalid in that it was not made as therein provided. It is now proposed to overrule our former decision on the theory that it, in effect, has been overruled by Hanna v. Stedman (230 N. Y. 326). I am unable to agree with that view. In Hanna v. Stedman (supra) it was held that an action of interpleader brought by a beneficiary association, which had issued beneficiary certificates to a member payable on his death to a designated beneficiary who predeceased him, against conflicting claimants under the certificates, and to be relieved from liability by payment of the amount payable by it under the certificates as might be directed by the court, and to require the claimants to litigate between themselves their respective rights thereto, was not' an action in rem or one affecting specific personal property within the provisions of subdivision 5 of section 438 of the Code of Civil Procedure, authorizing service on a non-resident defendant by publication. In that case the amount payable under the certificates had been collected from the members of the association, but had not been separately set apart or appropriated to the payment of the certificates; and the court held that the liability of the association was a mere personal liability to whoever might be entitled to collect of it the money, and that no right or title to or lien upon specific personal property was involved in the action of interpleader. The controlling principle enunciated by that decision is that to constitute an action one in rem there must be a prayer for *98the determination of rights with respect to specific property within the jurisdiction of the court and the judgment therein must operate upon the property, and that an action of inter-pleader is not such an action, for the reason that the plaintiff therein makes no claim to the property or fund. Our decision on this point on the former appeal was predicated principally upon the decision in Morgan v. Mutual Benefit Life Ins. Co. (189 N. Y. 447), which the court in Hanna v. Stedman (supra) neither overruled nor deemed sufficiently in point to require that it be distinguished or even considered. I am of opinion that this case cannot be distinguished on principle from Morgan v. Mutual Benefit Life Ins. Co. (supra). There, as here, the action was brought against the insurance company and the beneficiaries under an insurance policy present and payable here; and the facts there differed from those here presented only in that there the plaintiff claimed only a part interest in the policy by way of an equitable lien upon it and upon the proceeds thereof, while here the plaintiff claims and has shown an equitable assignment of the entire policy and the right to the whole amount payable thereunder. The beneficiaries in that case, as here, were non-residents of the State, and it was there held that the policy to which the action related constituted specific personal property within the State within the purview of subdivision 5 of section 438 of the Code of Civil Procedure, authorizing service by publication, and that jurisdiction over the beneficiaries was obtained by such service. Said subdivision 5 of section 438 expressly authorizes such service where the action affects the title to specific personal property as well as where it relates to an interest therein or lien thereon. The defendant is a domestic corporation, and the policy was expressly made payable in this State, where it was issued and assigned to the plaintiff and where she and ■her husband 'resided and where it was in her possession when the action was commenced and when it was tried. The action was brought for' a judgment affecting the ownership of the policy by divesting the beneficiary of any interest therein and vesting the title and ownership thereof in the plaintiff who holds it, and requiring payment thereof by the insurance company to her. This, therefore, is plainly as between the plaintiff and the beneficiary, an action in rem *99and one affecting the right and title to specific personal property. (Morgan v. Mutual Benefit Life Ins. Co., supra; Holmes v. Camp, 219 N. Y. 359.)
I, therefore, vote for affirmance.
Merrell, J., concurs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.