This is an appeal from an order denying the motion of the defendant to interplead one Annie Kearney as the defendant in its place and stead.
The action is brought to recover on a policy of life insurance issued by the defendant.
The party sought to be interpleaded claims the money as the lawful beneficiary, and the plaintiff makes the same'claim.
It .sufficiently appears by the affidavit of George B. Woodward, the secretary of the defendant company, and by the complaint herein, that the plaintiff was named in the application for insurance as a beneficiary under the policy and that she is a daughter of the decedent.
To meet this we have the affidavit of Annie Kearney to- the-effect that she is the niece of the decedent; that she and her mother paid all the premiums due under the said policy and that at the time of the death of the insured, she (deponent)' had in her possession the premium-book and the policy of insurance. .
*404Before an interpleader will be allowed the defendant must show affirmatively that such a claim has some reasonable foundation and that the defendant cannot, without hazard, determine to which of the parties claimant it shall pay the money. Stevenson v. Life Ins. Co., 10 App. Div. 233.
The most that can be said in,favor of the claim of Annie Kearney is, that she paid the premiums and had possession of the policy.
The mere payment of • premiums could only. create a claim against the estate of the decedent, and never a lien upon the policy, in the absence of - some agreement between the parties, nor does the possession of the policy add 'to the claim made, as it does not appear that Sheffield the policy with the consent and approval or even with the knowledge, of the insured; therefore, on the undisputed facts as claimed she would have no interest in the fund as against the ■ daughter, who had an insurable interest in her mother’s life, as-well as taking by direct inheritance as her heir-at-law.
We think the denial of the application was the proper exercise of the discretionary powers vested in the' court.
Order affirmed, with costs.
Schuchman J., concurs.
Order affirmed, with costs.