Feldman v. Grand Lodge A. O. U. W.

Ingraham, J.

By the certificate issued to Anton Dobler the sum of $2,000 was payable upon his death to Babette A. Dobler, his wife. Subsequently Anton Dobler revoked the direction under which this certificate was issued, and directed the payment of the beneficiary fund to be made to Charles Dobler, his son. Subsequently Anton Dobler revoked the last direction, and directed the payment of the fund to be made to Frank Joseph Anton Dobler and Tillie Dobler, his son and wife, share and share alike. It also appeared that Till ie Dobler was not the lawful wife of Anton Dobler, and that Babette A. Dobler, as the wife of Anton Dobler, claims the fund, and has demanded payment thereof. There is no intimation that there is any collusion between the defendant and the claimants of this fund, and we think that a proper case is made out for an interpleader, and that the claimants be substituted as defendants in this action upon payment into court of the amount claimed. The complaint, however, demands judgment for the sum of $2,000, with interest thereon from December 28, 1891, and the order provides that the defendant pay to the chamberlain of the city of New York, to the credit of this action, the sum of $2,000, within 10 days from the entry of the order. Before the defendant can be discharged from liability, it must pay into court the amount claimed by the plaintiffs, and the order must therefore be modified so that the defendant pay into court, in addition to the sum of $2,000, interest thereon from the 28th of December, 1891, to the date of payment.

The objection is also made that as some of the alleged claimants are infants, and were not represented by guardian, and no notice of the application was shown to have been served upon them, the order would not be binding upon them.' But it does not appear that any of the infants have any claim to this fund. All that appears is that the widow of Anton Dobler has made some claim that, in a certain contingency, her children would be entitled to a portion of the fund. Notice was given to Babette A. Dobler, the person who claimed the fund, and, she having appeared on the motion and consented to the order, the court had power to substitute her as the defendant in the action upon the payment into court of the amount claimed in the complaint, and on such a motion the court also had power to join as a party defendant any person who has or claims an interest in the controversy adverse to the plaintiffs, or who is a necessary party defendant for the complete determination or settlement of the question involved therein. Code, § 427. The plaintiffs cannot be injured by the failure of the defendant to give notice to the infants; and having a guardian ad litem appointed for them, as, in case the defendants fail to answer the amended complaint, they will be entitled to the fund. I think, therefore, that the order appealed from should be modified by substituting for the sum to be paid into court the sum of $2,000, and interest thereon from December 28, 1891, to the date of the payment, and that upon such payment being made the summons and complaint in this action be amended by inserting the individuals substituted as defendants in place of the present defendant, and that the plaintiffs be allowed to make and serve an amended summons and complaint accordingly, and as thus modified the order should be affirmed, without costs to either party.