
    Ann Palmer, Resp’t, v. The Mutual Life Insurance Co., Charles Eberlin, Assignee, etc., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 6, 1888.)
    
    1. Practice—When person has a right to be made a party in an action on MOTION.
    A defendant who has an interest in the subject of the action has a right to be made a party to that action, and may be made such party of his own motion. But it must be made to appear on the motion that he has, as a matter of fact, an interest in the subject of the action.
    3. Same—When party not an interested party.
    The plaintiff held one of the policies sued on by a written assignment, and the other as pledgee. The assignee for the benefit of creditors of the party whose life was insured, made a motion to be admitted as defendant, on the ground that he was an interested party in the suit of the plaintiff to recover the money due on said policies. Held, that the motion was properly denied.
    Appeal from an order denying a motion made by Charles Eberlin, as assignee for the benefit of creditors of George H. Palmer, to be made a party defendant herein, upon the ground that he is interested in the subject of the action. The action was brought upon two insurance polices upon the life of George H. Palmer, one for $10,000 and the other for $2,500. In 1881, Mr. Palmer, by a written assignment, assigned absolutely the $10,000 policy to his mother, the plaintiff in this action. Afterwards Mr. Palmer, who was a stock broker, and who, to some extent, had charge of his mother’s papers, wrongfully took this policy, without Mrs. Palmer’s knowledge, from her papers. Mr. Palmer after-wards died, and an examination of his mother’s papers disclosed the fact that this policy was missing. Upon inquiry Mr. Charles Eberlin, the moving party here, informed the plaintiff that this pohcy was held by one W. P. Wadsworth, as security. Mr. Wadsworth had loaned money to Mr. Palmer upon this pohcy, and also the $2,500 pohcy, which loan was represented by a note for $3,575. The plaintiff, not wishing Mr. Wadsworth to lose by the fraud of her son, paid him the amount due him and took the note and the policies from him, and the note is now due and remains wholly unpaid. Mrs. Palmer’s right to pay the $3,575 note from the proceeds of the policies is not disputed, and Mrs. Palmer contends that as she is the owner of the $10,000 pohcy, and as the proceeds of the $2,500 pohcy is not sufficient to pay the $3,575 note in full (which now amounts to about $3,800), no one but herself can have an interest in the subject of the action, and the question on this appeal is,, whether Mr. Eberlin, in his moving papers, shows an interest which entitles him to be made a party to this action.
    
      F. F. Marbury, Jr., for app’lt; Maclay & Forrest, for pl’ff and resp’t; Thos. A. Watson, for def’t.
   Sedgwick, Ch. J.

The action is upon two causes which . is to recover an amount payable by a policy of insurance upon the life of George H. Palmer; the plaintiff claims by assignment; the complaint has not been answered.

The appellant claimed that he was the owner of the policies. As to one he virtually admitted that it was held validly by the plaintiff as pledgee, having the right of a former pledgee, who assigned to the plaintiff.

The learned justice at special term* examined the right of the appellant as against the plaintiff, and upon sufficient ground, held that he had no right to recover against the defendant, superior to that of the plaintiff.

I am of the further opinion that the interest of the appellant, whatever it is under, and however valid, was not an interest in the subject of the action. The subject of áction was not a fund or a res of any kind. It was a personal claim of the plaintiff, the issue, when formed, would be as to the plaintiff’s right to recover.

In that the appellant had no right or interest of a legal kind.

The action did not involve any claim of the appellant against the defendant on the policies, or against the plaintiff as to her duty to the appellant in respect of the proceeds, should the plaintiff recover in this action. In fact, the appellant’s position exhibits a claim of having a cause of action distinct and separate from the cause of action" here.

Order affirmed, with ten dollars costs.

Dugro, J., concurs.

The opinion of Truax, J., at special term, was as follows:

*Truax, J. The moving party, Mr. Eberlin, does not show any interest in the policies of insurance that is superior to the interest of the plaintifE. He states that the $2,500 policy is held as collateral security for the payment of the sum of upward of $3,500. The plaintifE alleges in her complaint that the $10,000 policy was assigned to her in 1881, and that notice of that assignment was given to the defendant.

This allegation of the complaint is not denied, for I donot consider the affi davit submitted by Mr. Eox as evidence of any fact. It is simply an affidavit of something that was told to Mr. Eox by somebody. It is true that the person making this motion says that he "is interested in the subject of this, action,” but he does not state how he is interested, nor does he show that he has in law an interest in the policies—the subject of the action. A defendant -who has an interest in the subject of the action has a right to be made a party to that action, and may be made such party on his own motion. But it must he made to appear on the motion that he has, as a matter of fact, an interest in the subject of the action. He has not shown that by alleging that he “ is interested in the subject of this action to the extent of recovering for such creditors the amounts of said policies of insurance, or so much thereof as he is entitled to, which, as deponent demands, claims and insists is the whole thereof, less the amount which was due to Wadsworth, and interest.” This allegation does not rebut the allegations made by the plaintiff above referred to. On the papers it appeared that the policy was duly assigned to plaintiff, and as such assignment is not disputed, the moving party can have no legal interest in thesubject of the action.

Motion denied, with ten dollars costs.  