
    John W. Windecker, Appellant, v. The Mutual Life Insurance Company of New York and Ellen Pickert, as Administratrix, etc., of Solon S. Pickert, Deceased, Respondents.
    
      Interpleader — the action becomes eqiiitable — extraneous matters should not be litigated in it—costs in equity ■—■counterclaim of a joint, against an individual, claim — of one held in a representative, against one held in an ■ individual, capacity—court may apportion the fund.
    
    By an order of interpleader, and the service of the supplemental complaint and answer in an action, equitable issues are created, and, whatever the action may have originally been, it thenceforth becomes an action in equity.
    In such an action the allowance of costs rests in the discretion of the trial court.
    Section 820 of the Code of Civil Procedure is a substitute for the old action of interpleader and is governed by the same principles.
    Section 501 of the Code of Civil Procedure relative to counterclaims does not authorize the setting off of a joint obligation against an individual one.
    A claim existing against an individual cannot be set off against another in his favor in a representative capacity.
    It is contrary to the spirit and purpose of an action of interpleader to have litigated therein extraneous matters; the contest between the claimants should be limited to the specific property involved.
    "Where a fund is brought into court in an action of interpleader the court may apportion the fund according to the equitable rights of the parties, and may. fasten upon the fund, in whole or in part, any equitable lien or trust which one of the parties may have established, although the proprietory legal title is in the other.
    An action to compel a reassignment of a policy of insurance distinguished from an action in equity to recover the proceeds thereof, as regards* the necessity of compliance with a condition precedent to the right to a reassignment thereof.
    
      Appeal by the plaintiff, John W. "Windecker, from a judgment of the Supreme Court, entered in the office' of the clerk of the county of Herkimer on the 10th day of January, 1896, upon the decision of the court rendered after a trial at the Oneida Special Term.
    The judgment provided that, out of an insurance fund held by the defendant, the Mutual Life Insurance Company, there should be paid to the plaintiff- (the appellant) $922.27, and Ellen Pickert, asadministratrix, $725.16, with costs in favor of Ellen Pickert against, the plaintiff. Ho other costs were awarded. This judgment grew out of the following facts: On the 23d day of January, 1875, the insurance company issued a ten-year life limited payment policy for $1,500 on the life of Solon S. Pickert. Pickert paid the first premium, and on the 27th of January, 1875, the said Solon S-. Pickert. made an.absolute assignment of said policy and delivered the sámete the plaintiff. On the same day he entered into an agreement in writing with the plaintiff, which is known in the record as Schedule “B,” which recited that John Pickert, the grandfather of Solon, had, in 1837, devised by will to his son Emilius Pickert, the father of Solon, sixty-eiglit acres of land situate in the town of Fairfield, Herkimer county, for and during the natural life of Emilius, and, in case that Emilius left a child or children him surviving, then this real estate should go. to such child or children; and that said Solon S. Pickert desired to sell said real estate or his interest therein, and the agreement provided that “ The said party of the first part, for and in consideration of the sum of five hundred dollars to. him paid,, does hereby sell, set over, transfer and assign all his right, title and interest in and to said sixty-eight acres of land * * * to . said Windecker, his heirs and assigns forever; and the said party of the first part, *■ * "x" will immediately, upon the death of his said father, Emilius Pickert, make and deliver to the said Windecker a good and sufficient deed of conveyance with the usual covenants of warranty of all his share, right, title and interest in the said sixty-eight acres of land or any part thereof, the title of which shall descend to him by virtue of said will (the will of the grandfather) in case of his father’s death.”
    The agreement further recited the risk attending the transaction by reason of the possibility of the death of Solon before that of Emilius, and that Solon had procured and perfected a life insurance policy upon his own life'for the sum of $1,500 in the said insurance company, and continued: “ Now, therefore, the said party of the first part hereby further covenant, promise and agree to also sell, assign, transfer and set over to said Windecker the aforesaid policy of insurance and all the money which may become due thereon, to have and to hold the same as security for the repayment of said five hundred dollars, interest and disbursements herein above provided for.” The agreement further provided that Solon should keep the insurance policy in full force and pay all dues and premiums thereon, and in case-of default the plaintiff might pay the same and keep the policy in life and good, and for such payments the plaintiff should have a further hen upon the policy for repayment, with interest on such disbursements added to the principal sum above stated of $500 and interest thereon, and that the plaintiff, upon the death of Emilius, and upon the execution and delivery to him of the said deed by the said Solon, and upon payment to him of all moneys annually expended by him to keep said policy in life, covenanted to retransfer and assign said policy to said Solon for his use and benefit. And it was further provided that the plaintiff was to have and to hold said life insurance policy until- he should be fully repaid and reimbursed and made good as well for said principal sum of $500 and annual interest thereon as for all premiums and disbursements to keep said policy in life, with annual interest from the date of said expenditures and disbursements. Solon S. Pickert failed to make the annual payments except the first, the plaintiff making the other, nine payments, the last payment being made January 23, 1884. Annually from 1885 to 1890, inclusive, the plaintiff received dividends on the account of said policy. Emilius Pickert died in 1889, leaving surviving him six children. On the 12th of May, 1890, Solon S.. Pickert was duly-adjudged a lunatic and confined in an asylum, and the defendant Ellen Pickert was appointed his committee and continued to act as such committee down to the time of the death of Solon, which occurred October 5, 1892. -On the 17th of October, 1892, Ellen was appointed administratrix of the effects of Solon. Due proofs of the death of Solon were made out and delivered to-the insurance company October 25, 1892. By the'terms of the policy the insurance was to be paid within sixty days after the proofs-were delivered. There was due from the company upon this policy at that time two dividends of $10 each, making the "whole sum $1,520. The plaintiff and Ellen Pickert, as administratrix, both claimed from the company the whole-fund. Each brought actions in this, court separately against, the insurance company to recover the same, whereupon the company moved, upon notice to the plaintiff ■and to Ellen S. Pickert at the Onondaga Special Term on the 1st ■day of September, 1894, for an order of interpleader under section 820 of the Code of Civil Procedure. The plaintiff and the said Ellen, by their respective counsel, appeared upon the said motion •and seemed to have made no objection to the granting of the same, whereupon the court ordered as follows: “ That Ellen Pickert, as administratrix of the goods, chattels and credits of Solon S. Pickert, •deceased, be joined as an additional defendant in this action, and that the summons and complaint herein be deemed amended accordingly.” The motion was made in this action which had been instituted by the plaintiff, and the order enjoined Ellen, as administratrix, from commencing any other action against the company upon the life insurance in question, and that all proceedings upon her action brought against the company should be perpetually stayed. Whereupon the plaintiff served a supplemental summons and complaint which was ■■served upon Ellen Pickert, who subsequently answered the same. The complaint alleged the policy and the facts hereinbefore set forth as to the assignments and the disbursements by the plaintiff, .and as to Schedule “ B,” and set forth the order of interpleader and the due •entry thereof, and demanded judgment that the defendant, the Mutual Life Insurance Company of New York, pay over to this plaintiff the sum of $1,520, with interest thereon from the 5th of ■October, 1892, and for such other relief as the court might grant, with costs.
    No relief was demanded against the defendant Ellen S. Pickert ■or demand made for the execution of the deed with covenants as specified in Schedule “ B.”
    The defendant Ellen S. Pickert answered the supplemental complaint, and among other things alleged that on the 19th of January, 1891, and while she was acting as the committee of Solon S. Pickert, she applied to the plaintiff for an accounting and settlement a,s to the matter of the insurance policy and as to the disbursements of the plaintiff in regard to the same, with a view of paying such disbursements of the plaintiff and procuring a reassignment of the policy as provided in Schedule “ B,” but that the plaintiff refused to make any settlement or accounting and claimed to be the absolute owner of the policy, and denied any right of the said Solon S. Pickert therein, and also alleging the receipt by the plaintiff of dividends upon the policy, alleging the full performance by Solon S. Pickert of Schedule “ B ” upon his part, the death of said Solon, her appointment as administratrix, and demanding that the said insurance company pay to her the full amount of the said policy, with interest and the accrued dividends, and that in case the court should hold that the plaintiff had any interest in said policy of insurance for "any money paid out by him on the account thereof, that the court direct an accounting on his part of the moneys received and paid out by him and the interest thereon, and for such further relief as the court might grant.
    The defendant, the life insurance company, also made answer, admitting that they held the sum of $1,500 insurance and $23 dividends upon said policy which they were ready to pay upon an adjudication by the court as to whom of the respective claimants thereto it belonged, and asked that it have costs-of the action.- The plaintiff replied to the answer of Ellen Pickert denying that he had claimed to be the sole owner of the policy, and that he had refused to settle and account for the moneys expended thereunder, with other denials.
    The action was tried and the tidal'court found, among other things, “ that on or about the 19 th day of January, 1891,.at the plaintiff’s residence, the said Ellen Pickert, as such committee, personally requested the plaintiff to account for the moneys paid out by him mider said agreement of January 27, 1875 (Schedule ‘B’), upon said policy of insurance, and offered to pay and reimburse him for. the moneys so paid out and interest, if he would assign and deliver to her, as such committee, said policy of insurance, and that thereupon the plaintiff declined and refused to account and refused to assign and deliver said policy to her, but'stated and claimed that he owned said policy and that she had no interest in it as such committee, and that said Solon S. Pickert had no interest in it; that at said time said Ellen Pickert made no tender and had no money there for that purpose.”
    
      The trial court also found that there ivas due from the insurance company, at the date of the decision, the sum of $1,645.14, which included the amount of the policy, the unpaid dividends and interest on $1,520 from the commencement of the action, August 12, 1894. No interest was allowed after the expiration of the sixty days from the service of proofs of loss, until the commencement of the action ; that the plaintiff had paid out on account of said policy the sum of $504.30 in the nine payments of premiums referred, for which he was entitled to recover, with interest, oil the several premiums paid from the dates thereof respectively, less the sum of. $48.20 received b.y him in dividends and the accrued interest on such dividends, which, after such deductions, left the amount due the plaintiff on account of said policy the sum of $919.98, and that the defendant Ellen Bickert, as such administratrix, was entitled to what remained of the said sum of $1,645.14. after deducting the sum due to the plaintiff, which remaining amount was $725.16.
    The trial court further found that Solon S. Pickert had brought an action in this court while a lunatic against the plaintiff herein, Frederick Windecker and Joseph T. Wooster, and on the 3d day of March, 1892, the complaint in that action was dismissed with a separate bill of costs against the plaintiff in favor of the defendant Frederick Windecker, and the plaintiff herein, for the sum of eighty-seven dollars and,twenty cents, and the further bill of costs in favor of Frederick Windecker, John W. Windecker and Joseph T. Wooster for the sum of sixty-two dollars and ninety-six cents; that the said Solon S. Pickert appealed from said judgment to the General Term of this court. Pending said appeal Solon S. Pickert died, and Ellen S. Pickert, as administratrix, was substituted for herself as committee; the judgment was affirmed upon appeal with a judgment for costs in favor of the said Frederick Windecker and John Windecker and Joseph T. Wooster of eighty-five dollars and-sixty-eight cents. The trial court held as a- matter of law that neither of the judgments for costs heretofore mentioned Was a counterclaim or offset in any manner to the -claim of the defendant Ellen S. Pickert, as administratrix, in this action.
    No appeal was taken from the order of interpleader, and the plaintiff only appeals from the judgment rendered herein.
    It appeared in evidence, and was not disputed upon the trial, that the plaintiff John W. Windecker and wife, on the 26th day of December, 1889, executed and delivered to Joseph T. "Wooster a warranty deed dated that day, whereby, in consideration of the sum of $704.79, they conveyed to said "Wooster one undivided sixth interest in the said sixty-eight acres of land, being the same interest that had been conveyed by Solon S. Pickert to the plaintiff by Schedule “ B,” which deed was recorded in Herkimer county clerk’s office.
    The action of Ellen S. Pickert, as committee, in which the costs accrued, as above stated, was an action for partition of the sixty-eight acres, and the General Term held that Schedule “ B ” operated as a conveyance to the plaintiff of the said sixth interest, and consequently the plaintiff - Solon S. Pickert had no interest in the land whereby he could maintain the action of partition. (See case reported 73 ITun, 476 ; 26 N. Y. Supp. 437.)
    
      G. J. Palmer, for the appellant.
    
      P. G. J. Pe Angelis for the respondent, Ellen Pickert.
    
      Pichard P. Ma/rtin, for the respondent, The Mutual Life Insurance Company.
   Ward, J.

As neither the Mutual Life Insurance Company nor Ellen Pickert, as administratrix, has appealed from the judgment entered upon the decision' of the trial court, the objections urged by them respectively cannot be considered upon this review. We will, therefore, examine only the objections taken by the appellant to the procedure below.

The appellant vigorously assails the conclusions of the trial court in regard to the refusal of the plaintiff to account to Mrs. Pickert for his expenditures and his claim of absolute ownership of fire-policy and its proceeds. An examination of the evidence upon this subject discloses considerable evidence sustaining the contention of each party, but we are not able to find such a preponderance in favor of the appellant’s contention as will justify us in overruling the conclusions of the trial court upon this question of fact, that court having had the witnesses before it and being in a better position to judge as to where the truth rested in the conflicting testimony.

The appellant also claims that this action as originally brought against the defendant, the Mutual Life Insurance Company, was simply an action at law to recover the money that became , due upon the death of ■ Solon S. Pickert, and that it still retains its character as a legal action notwithstanding the order of interpleader, an.d that the trial court erred in not giving judgment to the plaintiff for the whole' amount in the hands of the insurance company in the plaintiff’s favor, because the plaintiff Was entitled, under the contract and assignment from Solon S. Pickert, to recover the whole amount in the first instance.

By the order of interpleader and the service of the supplemental complaint and answer creating equitable issues, this action, if it ever had the character of a legal action, ceased to he such and became an action in .equity. - (Dinley, as Administratrix, etc., v. McCullagh, 92 Hun, 454; Clark v. Mosher, 107 N. Y. 118.)

Section 820 of the Code of Civil Procedure is a substitute for the old action of interpleader and is governed by the same principles. .(Schell v. Lowe, 75 Hun, 43; Wenstrom Electric Co. v. Bloomer, 85 id. 389; Pustet v. Flannelly, 60 How. Pr. 67.)

The appellant further claims that he was entitled to costs, as a matter of course, upon his ■ recovery, and the trial court erred in refusing them to him and also erred in imposing costs upon him in favor of the defendant Ellen S. Pickert.

■ This being an equity action, as we have seen, the costs were in the discretion of the trial court, and the case was tried and disposed of upon equitable principles. The insurance company procured the proper order of interpleader and remitted the contest to the real parties in interest in the fund, the plaintiff and the administratrix. The trial court probably awarded costs against the plaintiff because of his refusal, as. found by it, to adjust his claim and of his insisting upon the absolute ownership in himself of the subject o-f the litigation, and thus compelling the administratrix to bring an action against the other defendant, which resulted in the consolidation. of the actions originally brought, through the order of interpleader.

We are unable to find in the record sufficient reasons for overruling the discretion of the trial' court upon ' .the subject of costs. ’ (Hodgkins v. Mead, 25 N. Y. St. Repr. 937; Pickert v. Windecker, 73 Hun, 485.)

The plaintiff also complains that the trial court did not require the insurance company to pay interest upon the $1,500 from the time the claim became payable under the policy, after the death of Pickert, to the commencement of this action, a period of about seven months. It is not perceived how the plaintiff is injured by this result. The judgment awards the plaintiff all that he is entitled to for the amounts expended by him and the interest, and if interest had been charged upon the company for the period mentioned, it would only have swelled the amount to which the administratrix was entitled under the judgment, and if error were committed in that regard, she is the only sufferer, and she cannot be heard to complain here as she has not appealed from the judgment.

The appellant further claims that the costs that were awarded to the plaintiff in this action, and to other parties as defendants upon the trial and upon the appeal in the ■ partition action,- should have been allowed by the trial court and deducted from the amount awarded to Mrs. Pickert as a set-off or counterclaim. We are at loss to discover upon what principle this contention can rest. The judgments for costs were joint judgments in favor of the plaintiff here, and defendant there, and other parties, and the proposition here is to set off joint judgments in favor of the plaintiff and others against the individual claim of Solon S. Pickert, deceased, as represented by his administratrix. A joint debt cannot be set off or counterclaimed against an individual debt. (Campbell v. Genet, 2 Hilt. 290; Compton v. Green, 9 How. Pr. 228; Newell v. Salmons, 22 Barb. 647.) This could not be done under the old Statute of Set-Offs. (2 It. S. 354, § 18.) Counterclaim embraces set-off and recoupment. (Pattison v. Richards, 22 Barb. 146.) And our Statute of Counterclaims is still broader, but it does not authorize a joint obligation to be set off against an individual one. (Code Civ. Proc. § 501.)

Again, the judgment for costs on the appeal was in effect a judgment against Ellen Pickert individually, as it arose after the death of Solon S. Pickert, and the plaintiff’s claim for costs could not be counterclaimed against it. (Mullen v. Guinn, 88 Hun, 128.)

Section 3246 of the Code of Civil Procedure, cited by plaintiff’s counsel, has no application to this case. (88 Hun, supra.)

An independent counterclaim as against the- counterclaim in the answer set up in the reply will not be sustained, but will be stricken out'upon motion. (Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civ. Proc. Rep. 265.)

The attempt to litigate extraneous matters in such an action as this is contrary to the spirit and purpose of an action of interpleader. In that action a-specific matter is put forth as the-ground of contention. One party, as it were, holds a particular stake of- property subject to the contention of others who claim that, same property. The contest proceeds between the claimants to the specific property involved and as to that property alone. To permit outside issues and matters affecting the claimants, but not connected with the subject of the action, would confound the action and lead to confusion, and compel the stakeholder to be a party to litigation in which he had no -concern, and it cannot he tolerated.

Finally, we are met with objection of the plaintiff that under Schedule “ B ” the representative' of Solon S. Pickert is not entitled to any relief out of the fund in controversy because of the covenant of Solon to give a deed with warranty Upon -the death of his father, .of the laud upon which the $500 was paid. The remarks just made about matters foreign to the subject of interpleader being injected into this action are applicable here. Whether there was a breach of this.Covenant, and, if so, what w.as the effect of such breach upon the lights of Pickert, does not seem to have been specifically raised by the pleadings or litigated upon the trial. So far as the evidence went upon that subject, the plaintiff, with regard to the $500 investment, seemed to have been content with the price received for the land that had passed out of his ownership and possession, and the administratrix upon the trial made no claim to recover the land, but only her proportion of the-insurance money.

. If this were an action for the reassignment of the policy it might be urged with some force that the execution of this deed was a condition precedent to the right for a reassignment, but in this action the administratrix did not seek for a reassignment of the-policy or to recover the land, but to recover the money which belonged to her in equity. A reassignment of the policy was not necessary to reach this result. In equity the plaintiff had a mortgage or lien upon this fund for his advances, and.when that lien was satisfied the balance of the fund belonged to .the administratrix. ■ ■

■ The claim of the plaintiff, that under Schedule “ B ” he has the right to hold all this fund indefinitely to meet some possible infirmity in the title to the land, in view of the facts above stated, and the further fact that his title has been sustained in an action in this court between the proper parties (73 Hun, supra), cannot and should not prevail. It is purely technical. Another deed was unnecessary, as the ¡Dlaintiff’s title was perfect under Schedule “ B.” The covenants of warranty in another deed would not strengthen that title, and, besides, the party who should execute such a deed with the covenants, was. dead. At all events, if we are to consider the question here, it should have been embraced within the issues, and passed upon at the trial.

There was no difficulty in' the trial court apportioning the fund in, the hands of the insurance company according to the equitable rights of the parties. The fund was held by the company, subject to the control of the court. The court may fasten upon this fund in whole or in part any equitable lien or trust which one of -the parties may have established though the proprietary legal title is in the other.

' The court should so shape its decree and distribute the fund as to do complete equity between the parties. (Whitney v. Cowan, 55 Miss. 626.) And such was the result in this case.

The judgment appealed from should be affirmed, with costs to be paid by the appellant to the respondent Ellen Piekert, as administratrix, and also to the insurance company.

All concurred.

Judgment affirmed, with one bill of costs to each respondent to be paid by the appellant.  