
    Lillie Lane and Others, Respondents, v. The Equitable Life Assurance Society of the United States, Respondent, and W. Morton Garden, Individually and as Executor, etc., of George W. Kidd, Deceased, Appellant.
    
      Interpleader—payment of the amount of an insurance policy into court— the insurance company should not be allowed costs to be deducted from, that amount before such payment.
    
    Where in an action to recover upon a policy of life insurance, brought against the insurance company issuing the policy and a party claiming the proceeds of such policy adverse to the plaintiffs, the Special Term discharges the insurance company from all liability in the action upon its paying into court the proceeds of the policy, the order should not award costs to the insurance company to be deducted from the proceeds of the policy directed to be paid into court.
    Appeal by the defendant, W. Morton Garden, individually and as executor, etc., of George W. Kidd, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of December, 1904, discharging the defendant, the Equitable Life Assurance Society of the United States, from all liability in this action upon paying into court the sum of $10,162.40, with interest, and directing that upon the entry of final judgment the appellant surrender and deliver up to said assurance society a certain policy of insurance.
    
      Gilbert W. Minor, for the appellant.
    
      Frederick S. Fisher [Abel E. Blackmar with him on the brief], for the plaintiffs, respondents.
    
      William C. Diamond [Edward D. Brown with him on the brief], for the respondent Equitable Life Assurance Society.
   Willard Bartlett, J.:

The court at Special Term had jurisdiction to grant the order appealed from, under the authority of Lane v. New York Life Ins. Co. (56 Hun, 92). It does not seem to us that the appellant has any grievance on account of the amount fixed by the court below as payable in order to discharge the liability of the Equitable Life Assurance Society. He presented no affidavit bearing on that question, and we think that the recital in the order to the effect ■that his counsel appeared and consented to the said payment into -court,” implies an assent on his part that the amount offered and ■admitted to be due by the Equitable Life Assurance Society was all to which any claimant was entitled under the policy of insurance in controversy.

In the brief for the appellant, however, objection is made to the -award of fifty dollars costs to the Equitable Life Assurance Society to be deducted from the proceeds of the policy directed to be paid into court. We can see no propriety in this award of costs, and the order should be modified by striking it therefrom. Fo reason can be suggested why the claimants to the proceeds of an insurance policy should be compelled to pay anything to the insurance company because it is allowed to withdraw from a litigation by paying into court the sum of money which it concedes to be due to •somebody.

Order modified by striking out the award of fifty dollars costs to ■the Equitable Life Assurance Society, and as thus modified affirmed, without costs of this appeal.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Order modified by striking out the award of fifty dollars costs to the Equitable Life Assurance Society, and as thus modified affirmed, -without costs of this appeal.  