
    Stella St. John, Appellant, v. Union Mutual Life Insurance Company, Respondent.
    Fourth Department,
    May 5, 1909.
    Insurance — substitution of parties — when affidavit sufficient to show adverse claimants.
    Affidavits on a motion for an order of substitution made by an insurance company sued on a policy payable to the insured at the end of fifteen years or, if he died before that time, to plaintiff as his wife, cur such other beneficiary as might be designated, examined and held, to warrant an order substituting the personal representatives of the" deceased as defendants in the place of the insurance company, as provided by section 820 of the Code of Civil Procedure.
    Williams and Robson, JJ., dissented, with opinion.
    Appeal by the plaintiff, Stella St. John, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 16th day of January, 1909, substituting another as defendant in place of the Union Mutual Life Insurance Company.
    The action is brought to recover the amount of a life insurance policy issued upon the life of Jay St. John. The respondent insurance company concedes its liability, but the insurance is claimed by both the plaintiff and the personal representative of the insured. The facts are fully stated in the opinion of Mr. Justice Williams. The appellant contends that they are insufficient to warrant the order, substituting the personal representative in the place of the insurance company, and appeals..
    
      Francis P. Burns, for the appellant.
    
      N. D. Yost, for the respondent.
   Kruse, J.:

I think the order should be affirmed.

Section .820 of the Code of Civil Procedure provides that in certain actions, among others such as this, a defendant may at any time before answer, upon proof by affidavit that a person not a party to the action.makes a demand against him for the same debt or property, without collusion, apply to the- court upon notice to that person and the adverse party for an order to_ substitute that person in-his .place, and to discharge him from liability, by paying the amount of "the debt into court. 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 order should be affirmed, with ten dollars -costs .and disbursements.

All concurred, except Williams and Robson, • JJ., who dissented in an opinion by Williams, J.

Williams, J. (dissenting):

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, -without: prejudice to a renewal of the motion upon' additional papers.

The action was brought to recover the amount- of an insurance policy upon the life of Jay St. John. The plaintiff and the-representative of the estate of the insured both claimed the insurance. The defendant conceded its liability to pay the money -to filie -party really entitled to it, and this order was made upon its ''application substituting the representative of the estate, allowing the defendant to pay the money into court-and relieving it from further liability. The plaintiff Insisted there were, no facts shown in the papers authorizing the making of such an order.

The policy was not produced or used upon the' motion, though shown to he in the possession of the representative. It did appear, however, that it was issued May 25,1906that it was made payable to the insured at the end of fifteen years* or if he died before that time to the plaintiff as his wife, or such other beneficiary as might be designated in the manner provided in -the policy ; -and if no béneficiary survived the insured, to his personal representative ,; -that he died June 18,1908,-within- two years after the policy was issued; -that the plaintiff-was ihot his wife, but liad lived with-him as such for ten years before 'lie died.; that lie -had -a wife, Rose St. John, -who-survived him, but who had for many years lived with another man, and had home children by him ; that the insured, shortly before his death, delivered the policy to a friend and told him to keep it until he, the insured, should call for it, and not to give it to any person but himself, and that when he called for it; that this friend kept the ¡aolicy until the insured died, and then gave it to a lawyer, who has kept it since, and this lawyer appeared as attorney for the representative upon the hearing of the motion resulting in the order appealed from.

These are the only facts really established by the motion papers hearing upon the designation by the insured of any beneficiary under the policy other than, the plaintiff. There were some "other things sworn to which it may be well to refer to,, viz,The defendant’s local manager, and through whom the policy was issued,.swore, that he was informed and believed that before the insured died the plaintiff left him and went away with another man. The plaintiff, however, swore that she went away with her own son, seventeen years old, to visit her father in Wisconsin, and while, on her way she received word of insured’s death, and returned, but too late to attend the funeral. The said manager also swore that he was informed and believed that the insured, after the plaintiff left him,, delivered the policy to1 a party unknown to such manager, with instructions to him to. hold the policy for the benefit of his- estate,, and to see to it that the plaintiff did not get the policy or the proceeds thereof, but, as we have already stated, the person to whom, the policy was given swore what the directions actually given him-by the insured- were. The plaintiff also swore that the insured claimed to her that he had lost the policy while he was intoxicated, and that after his death she was offered $500, and as high as $900, to give up her interest in this and another policy upon' insured’s life, and that the insured had told her that he did not care for his relations, etc., but we do not see that these thitigs are material to this inquiry. It might further be said that plaintiff’s statement as-to the insured’s wife living with another man and bearing children by him was only on- information and belief, and the statement by defendant’s manager as-to insured’s having left a wife who is his widow, while absolute and not on information and belief, could hardly have been known by him to be true, and this was the only proof there was of such wife and widow. It may be said that we cannot know that there had been no dissolution of their marriage prior to her living with and bearing children by'another man. So much as to the facts appearing on the motion. How as to the law.

It is well settled in this State that the courts will be liberal in protecting an insurance company from conflicting claims to insurance •money which it is ready and vzilling to pay to the person really entitled to it. But a mere claim by a third party, without reasonable grounds for such claim, and real danger from the conflicting claims, will not authorize the release of the company and the substitution in its place of the third party claimant in an action brought to recover the insurance' money. (Code Civ. Proc. § 820; Boskowitz v. Boskowitz, 124 App. Div. 849, and cases there referred to ; Steiner v. East River Sav. Inst., 60 id. 232, and cases referred to ; Hinsdale v. Bankers' Life Ins. Co., 72 id. 180, and cases referred to.)

Applying these rules of law to the facts in this case, we have the third party, the insured’s representative, claiming this insurance money, but there seems to be no evidence of any reasonable grounds for such claim, if indeed there are any grounds at all. He did not live during the term of fifteen years so as to be entitled to the same • prior to his death. If he had, his personal representative would be entitled to it. In the event of liis death before the expiration of the fifteen years, his representative would not be entitled to the money in case the beneficiary named in the policy, the plaintiff or any.beneficiary otherwise designated as provided therein, survived.

The plaintiff.did survive. She is, therefore, entitled to it unless the insured during his life designated some other beneficiary.' How the only claim that is suggested here is that by the delivery of the policy to another person before he died, and the directions given him orally with reference thereto, he in effect designated his own estate as beneficiary instead of the plaintiff.. There might possibly be some, basis for this claim if what the manager states on information and belief were to be regarded as true, but from the very nature of his statement he could give ño competent evidence as to such direction by the insured. He does not state the source of his information, and besides this, the man who had the policy after the death and surrendered it to the lawyer, now the representative’s attorney, swears he was the person to whom the policy was so delivered by the insured, and that the directions given him were merely to keep' the policy until the insured called for it, not to give it to any person hut himself, and that when he should call for it. There was no intimation whatever in this direction of a design to cut the plaintiff out of the policy as a beneficiary or to make his own estate such beneficiary in case he died before the expiration of the fifteen years. So that there was no evidence before the court on the motion that the representative of the insured had any grounds whatever, reasonable or otherwise, for his claim to the insurance money, and in this condition of things the court had no grounds whatever for making the order.

This order should, therefore, be reversed and the motion denied. I am desirous, however, that the defendant should have protection against conflicting claims to this money, if on another motion it can make the proper proof and such motion may be made if the defendant desires.

Robson, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  