
    Bertha Hirsch and Carrie Hirsch, Appellants, v. David Mayer, Respondent.
    
      Pleading — right to share in a fund the proceeds of an insurance policy — when a claimant’s answer does not allege an indebtedness.
    
    In an action brought to determine the title to a fund of $5,000 paid into court by an, insurance company, the plaintiff claimed under an assignment from the beneficiary and the defendant set up a prior assignment executed by the same person, and in the fifth clause of the answer alleged that before the assignment to the plaintiff the defendant, in an action to which the plaintiffs were parties, recovered judgment against the common assignor for §2,275.43,; that this was ..unpaid; that the judgment was rendered upon the foreclosure of a bond and mortgage for $4,000, made by the common assignor and delivered to the defends ant as security for the same debt- for which the assignment referred to in parar graph second of the answer was made.
    
      Held, that the fifth clause of the answer was the proper subject of a demurrer;
    
      That, taken by itself and regarded as a separate defense or counterclaim, it contained no statement that the common assignor owed the defendant anything upon the loan for which the bond and mortgage were given or that there was any deficiency after the sale in foreclosure;
    That the court, therefore, would not be authorized, upon such allegations, to award any part of the fund to the defendant.
    Appeal by the plaintiffs, Bertha Kirsch, and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of December, 1895, upon the decision of the court ’rendered after a trial at the New York Special Term overruling the plaintiffs’ demurrer to a counterclaim set up in the answer of the defendant.
    The answer demurred to contained in the first paragraph thereof a denial, on information and belief, that on October 14, 1894, Jeannette Kirsch duly assigned to the plaintiffs the policy in question ; and, on the contrary, alleged that the assignment referred to in the complaint was without consideration and made with the fraudulent intent to cut off defendant’s equities in the fund in suit, of which equities plaintiffs had full notice; and also denied the tenth allegation of the complaint, which alleged that David Mayer, the defendant, was not entitled to the moneys in question.
    The second paragraph of the answer was as follows:
    
      “ Second. Further answering, and for a separate defense, defendant alleges that the plaintiffs’ assignor, Jeannette Kirsch, and the assured, Jacob Kirsch, on June 4, 1891, jointly, for value, duly executed and delivered to the defendant an assignment of the policy referred to in the supplemental complaint, and that the defendant ever since has been and now is the holder and owner of said policy and of all rights thereunder.”
    The third paragraph alleged that this defendant after the assignment to him paid premiums on the policy.
    The fourth paragraph alleged that on or about the 16th of November, 1894, the plaintiffs, agreed with the defendant that out of the proceeds of the policy referred to in the complaint they would pay to him the sum of eighty dollars for the rent of. certain premises in College Point, New York.
    
      The fifth paragraph of the answer (the paragraph demurred to) was as follows,:
    “ Fifth. And for a further and separate defense and by way of offset and counterclaim this defendant realleging the matters set out in folio'2 of this Amended Answer, further alleges that prior to. the alleged assignment referred to in paragraph IY of the supplemental complaint (to wit, on or'about the first" day of September, 1894),.. this defendant, in an action in the Supreme Court, Queens County, in which these plaintiffs were parties and had notice of all proceedings, recovered a judgment against their assignor, Jeannette Hirsch (upon personal service of the summons upon her therein), in the sum of $2,275.43, which judgment was duly docketed on said above-mentioned date, and which judgment is wholly unpaid; and. said judgment was rendered in an action for the collection and enforcement of a bond and mortgage in the sum of $4,000.00 made by said Jeannette Hirsch and thereafter assigned and delivered to this defendant as security for the same indebtedness for which the assignment referred to in paragraph ‘second’ of this amended-answer was made.”
    
      Louis Wertheimer, for the appellants.
    
      B. Lewinson, for the respondent.
   Ingraham, J. :

The plaintiffs demur to the fifth subdivision of the answer of the defendant upon three grounds : (1)" That the matters averred therein are insufficient in law upon the face thereof; (2) that the counterclaim is not of the character specified in section 501 of the Code of-Civil Procedure, and (3) that the counterclaim does not state facts sufficient to constitute a cause of action.. The allegations contained in the fifth paragraph of the answer are pleaded as a separate defense and by way of offset and counterclaim; and if the facts pleaded in this paragraph, standing by itself, are neither a defense to the action, a valid offset nor counterclaim, the demurrer must be sustained.

The action Was upon a policy of'life insurance, and was originally brought against the insurance company to recover upon a policy on the "life of one Jacob Hirsch, by which the company agreed to pay to Jeannette Hirsch, or her assigns, the sum of $5,000 within ninety days after notice of the death of Jacob Hirsch, the plaintiffs claiming the amount due upon the policy under an assignment by Jeannette Hirsch executed prior to the death of Jacob Hirsch. The insurance company appeared in the action and paid the sum due upon the policy into court, and thereupon the respondent ivas substituted as defendant, and a supplemental complaint was served setting up these facts and that the defendant claimed the money so deposited. The defendant answered this complaint and alleged (by the second paragraph of the answer) that prior to the assignment to the plaintiffs, and on June 4, 1891, the said Jeannette Hirsch and her husband, Jacob Hirsch, the assured, executed and delivered to the defendant an assignment of the policy referred to in the supplemental complaint, and that-the defendant ever since has'been, and now is, the owner and holder thereof. And by tlie fifth clause of the answer (the clause demurred to) the defendant alleges that prior to the assignment of the policy to the plaintiffs the defendant, in an action in the Supreme Court, in which these plaintiffs were parties, recovered a judgment against the assignor, Jeannette Hirsch, in the sum of $2,275.43, which judgment is wholly unpaid; that the said judgment was rendered in an action for the collection and enforcement of a bond and mortgage in the sum of $4,000, made by said Jeannette Hirsch and assigned and delivered to the defendant as security for the same indebtedness for which the assignment referred to in paragraph second of the answer was made.

This action, in the form which it has now assumed, is one to determine the title of this fund of $5,000 now in court, and the only question to be determined between the parties is as to the disposition of such fund.

It is impossible to determine to what the matters set out in folio 2 of this amended answer ” refer. There is no folio 2 of the amended answer in the record, and the defense or counterclaim cannot be aided by this allegation.

Paragraph fifth must stand by itself as a separate and independent defense or counterclaim, and as such it is clearly deficient, in that there is no statement that there was anything due from the plaintiffs’ assignor to the defendant upon the loan or obligation for which the bond and mortgage and policy in question were security. The substance' of the allegation is simply that a judgment was rendered in an action for the collection and enforcement of a, bond and mortgage in the sum of $4¿000, made by Jeannette Hirscli, and thereafter assigned and delivered to the defendant as security for the same indebtedness for which this policy in question was made. There is no allegation here as to thé amount of that indebtedness, as to whether any part of it remained unpaid after the amount that was realized upon the sale of the mortgaged premises was applied to this payment, and there is nothing, therefore,, that would justify the court in awarding any part of this sum to pay an amount due to the defendant. We think, therefore-, that the judgment-must be reversed and the demurrer sustained^ with costs to the appellants, with leave to the defendant to amend - his answer within twenty days upon payment of such costs and the costs in the court below. "

Yan Brunt, P. J., Barrett, Rumsey and O’Brien,. JJ., concurred. .

Judgment reversed and demurrer sustained,, with costs to áppeh' lants, with leave to defendant to amend his answer within, twenty days on payment of. such costs and costs in the court below..  