
    Richard W. Stevenson, as Trustee, Appellant, v. New York Life Insurance Company, Respondent; Corinne B. de Garmendia, as Executrix,.etc., Respondent.
    
      Interpleader — the claim of a Huai claimant must ham a reasonable foundation.
    
    Section 820 of the Code of Civil Procedure was not intended to introduce any new rule in reference to the requirements necessary to justify an interpleader; in order to justify such an order, it is not enough that it he shown that a claim has been presented against a fund already claimed by another, but it is necessary, in addition, to prove that such claim has some reasonable foundation, or that the stakeholder cannot, without hazard, determine to which of the claimants he should pay the fund.
    The fact that, after the party insured in a policy of life insurance, payable upon . his death to his personal representatives, had made an assignment of it to another, the insured wrote a letter to the company by which he repudiated the assignment, and that later, and after his death, his executors claimed the proceeds of the policy, does not present a situation where an order of inter-pleader is proper, as such a claim, unsupported by any proof, does not indicate that the insurance company will run any hazard in paying the fund to a duly constituted assignee of the insured.
    Appeal by the plaintiff, Richard W. Stevenson, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1896, granting an order of inter-pleader in the action.
    
      Julien T. Davies and Charles E. Hotchkiss, for the appellant.
    
      George W. Hubbell and Donald McLean, for the respondent.
   Van Brunt, P. J.:

This action was brought upon two policies of insurance issued to one Martin J. S. de Garmendia by the defendant, the New York Life Insurance Company, payable by their terms upon the death of said de Garmendia to his executors, administrators and assigns. On the 10th of September, 1892, de Garmendia assigned by instruments in writing said policies of insurance to one William H. Emerson and on the twenty-eighth of October Emerson assigned the same to Carlos G. de Garmendia, who, on the 6th of November, 1892, duly assigned the said policies to one Marie Rose de Gar-in endia. ■ On the 22d of November, 1894, said Marie Rose de Garmendia assigned and transferred the policies to the plaintiff, Richard W. Stevenson, as trustee. The insured having died on the 16th of June, 1896, the said Stevenson, as trustee, commenced this action to recover upon the said policies from the New York Life Insurance Company. The said company then, upon affidavit stating the foregoing facts, and that on the 16th of November, 1895, it had received a letter from Martin J. S. de Garmendia, the assured, in which he claimed the entire ownership in said policies free from any claim based on any assignment thereof, and directed that payment of said policies at his death should be made only to his legal representatives, and that on the nineteenth of June the company received a letter from the plaintiff, in which he claimed the proceeds under said policies, and on the twenty-second of June the conqpany received a letter from Donald. McLean, as attorney for the executrix of the deceased, in which he claimed for his client the proceeds under said policies; that the company had no interest in the question to whom the said policies of insurance belonged, and was ignorant of the grounds or merits of the respective claims made to said policies, and did not know to which. claimants it might safely pay the amount of said policies, applied' for an order discharging itself as defendant and bringing as defendant the executrix of said de Garmendia, deceased. This motion having been granted, from the order thereupon entered this appeal is taken.

It seems to be conceded upon the part of the respondent that, in order to entitle the defendant to an order of interpleader, it is necessary that it should be shown that two persons have preferred a claim against the defendant, without its collusion, for the same debt; that the defendant has no beneficial interest in the thing claimed, and cannot determine without hazard to itself to which of the claimants the debt should be paid ; and although upon the argument it seems to be claimed that there was a difference in the requirements between the condition of proof in an action of interpleader and in a motion for interpleader, it is evident that no such distinction exists. It is true.that section 820 of the Code of Civil Procedure is silent as to the proof which the court should require in order to justify the making of an order of interpleader. It simply states what must appear in order to entitle the court to act at all; and upon such proof it provides that the court may, in its discretion, make the order. Section 820 was intended to be a summary substitute for the more cumbersome procedure by action, and it was not intended to inaugurate any new rule in reference to what should be required to justify an interpleader. It must be made to appear, as is conceded upon the part of the respondent, that the defendant cannot, without hazard, determine to which of the parties claimant it should pay the moneys, the subject-matter of the action. In the case at bar there is not the slightest proof of hazard. It appears that these policies were assigned by the assured in his lifetime, as he had a right to do; and there is not tlie slightest particle of evidence tending- to support the claim made by his executrix, or any facts stated which can throw the shadow .of a doubt upon the right of the plaintiff to recover. It is true that it is stated that the deceased, in his lifetime, repudiated these assignments. But that of itself affords no grounds for the impeachment'of the assignment. Some facts or circumstances must be stated which throw some doubt upon the right of the plaintiff to recover the money sued for. It is said. in The Nassau Bank v. Yandes (44 Hun, 55): It is not necessary simply to establish, in order to justify an interpleader, that some claim is presented, but it is necessary, in addition, to prove that such claim has some reasonable foundation, or that there is some reasonable doubt as to whether the stakeholder would be reasonably safe in the payment over of the money.

The cases cited upon the part of the respondent in no way conflict with this rule. In all of them facts were stated from which the court could see that there was some question as to the right of the claimants; and the cases were not presented to the court upon the mere naked assertion of claims without an iota of proof tending to show that they had any foundation.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barrett, Williams, Patterson and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  