
    Mahr et al. v. Bartlett et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Equity—Jurisdiction—Conflicting Claims to Insurance Policy.
    A suit in equity may be brought against an insurance company and the claimant under a policy to establish the right of plaintiff, as against the claimant, to whatever may be due on the policy, leaving the liability of the company to be determined in a subsequent action at law.
    ■3. Same—Effect of Decree.
    A decree that an insurance company shall pay plaintiffs “such moneys as shall be found due and payable under and by virtue of the policy” does not determine that any moneys are due under the policy.
    3. Assignment—Validity—Jurisdiction of Equity Court.
    Where it appears that a debt owing by a defendant has been assigned to a nonresident co-defendant, who has not appeared, but has been served by publication, the court has jurisdiction to pass on the validity of the assignment.
    4. Insurance—Assignment of Policy—Pledge.
    A policy of insurance is not avoided by an assignment of it as a pledge.
    Appeal from special term, New York county.
    Action by John C. Mahr and others against Charles H. Bartlett and the Norwich Union Pire Insurance Company. Judgment was rendered for plaintiff, and the insurance company appeals.
    Argued before Van Brunt, P. J., and Cctllen, J.
    
      F. P. Foster, for appellant. David Welch, for respondents.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiffs, •entered upon a decision of the special term. The action is a peculiar one, and we have been somewhat at a loss to determine in what character it is to lie •considered. The plaintiffs claimed to hold a policy of fire insurance, issued by the defendant company in favor of the defendant Bartlett on the latter’s .stock, as security for a loan made to Bartlett. A loss occurred. Bartlett denied the pledge of the policy to the plaintiffs. This action was thereupon brought, and the relief sought was not to recover the amount of the loss, but *o have plaintiffs declared entitled to receive the moneys due on the policy, and to restrain the defendants from paying such moneys to Bartlett or to any one else than the plaintiffs. Bartlett answered, denying the pledge. The ■company answered, denying knowledge of the pledge, and alleged that one Kelly, of Iowa, was the owner of a paramount assignment from Bartlett. It further answered that the assignment to the plaintiffs violated one of the conditions of the policy, and for this reason asked, as a counter-claim, that the policy be adjudged void. On the company’s motion Kelly was made a party defendant. Being a non-resident, he was served by publication, but he never appeared in the action. On the trial.the plaintiffs established their claim against Bartlett, and the pledge of the policy, but no proof was given .as to the extent of the loss, nor of its adjustment. The court gave the relief prayed for, and from the judgment the defendant insurance, company alone has appealed.

It seems settled by authority that to an action on a pledged policy the pledgeor, as well as the pledgee, is a necessary party. Griffey v. Insurance Co., 100 N. Y. 417, 3 N. E. Rep. 309, citing Simson v. Satterlee, 64 N. Y. 657; Bard v. Poole, 12 N. Y. 495. The cases last mentioned were foreclosures of pledged mortgages. In Bard v. Poole the reason of the rule is stated to be that the general owner might he able to show the debt had been paid. The plaintiffs, as pledgees, might have maintained a suit at law on the policy, joining the pledgeor as plaintiff, or, if the latter refused to become plaintiff, making him a party defendant. As Bartlett denied the pledge, there would have been two entirely independent issues to be tried,—the pledge by Bartlett, and the liability of the company. A pledgeor has always the right to go into equity to foreclose his pledge. The pledge in this case being a chose in action, it should be collected, not sold, to satisfy the debt. Wheeler v. Newbould, 16 N. Y. 392. We therefore see no objection to an action in equity, having its purpose merely to establish the right of the plaintiff to recover any amount due on the chose in action, leaving the liability on the chose in action to be determined in a subsequent suit at law. The defendant insurance company raised no objection to the equitable jurisdiction, but, on the contrary, sought affirmative relief in its own behalf in that jurisdiction. We shall therefore treat the action as merely determining the rights to the benefits of the policy, and not as adjudging any liability of the defendant company, except so far as that defendant by its own action in asking affirmative relief put such liability in issue. In this view of the case, it was not necessary to prove upon the trial the extent of the loss or the presentation of proofs of loss.

The principal objection against the judgment below urged by the defendant company is that the court did not acquire jurisdiction of the defendant Kelly, and that therefore the judgment, so far as it restrains Kelly from collecting the insurance moneys, or suing the company therefor, is void. But Kelly does not appeal from the judgment, and the company have no standing to complain of it in this respect, except so far as it may be entitled by a valid judgment to be protected from any claim on Kelly’s part. Had the plaintiffs brought a suit at law on the policy, it would not have been a defense to show that Kelly claimed to own the policy. It would have been necessary for the defendant to go further, and show that Kelly did own it, or, at least, that the plaintiff did not. In a proper case the defendant might have an interpleader; but if one of the claimants was beyond the jurisdiction of the court, the defendant would labor under the same embarrassment as in this case, nor do we see how it would be relieved from it. It would have to show not only the foreign claim, but its validity. Any other rule would defeat the enforcement of liability in our courts, where there was a foreign claimant. The policy was not negotiable, and Kelly could not obtain any greater rights to the policy than his assignor Bartlett. The evidence clearly established the pledge of the policy to the plaintiffs, long anterior to the assignment to Kelly, which latter was not until four days after the commencement of this suit. The rights of the plaintiffs are therefore paramount to those of Kelly, and we must assume that it will be so held in Iowa.

It is next claimed that the policy became void by the assignment to the plaintiffs. That assignment was merely as a pledge to secure the payment of a debt. Griffey v. Insurance Co., supra, is conclusive to the effect that such an assignment does not avoid the policy.

Lastly, it is contended that the decree goes beyond the pleadings in awarding absolute judgment against the company on the policy. We do not so construe the decree. It adjudges that the company pay the plaintiffs “such moneys as shall be found due and payable under and by virtue of the policy.” It does not determine what moneys, or that any moneys, are due on the policy. It simply adjudges plaintiffs’ rights to the policy at whatever value it may be. We think the case properly determined, and that the judgment appealed i'rpm should be affirmed, with ’costs.

Van Brunt, O. J., concurs.  