
    Mary Agnes Gleason, Respondent, v. The Northwestern Mutual Life Insurance Company, Appellant.
    First Department,
    May 11, 1906.
    Conflict of laws -— life insurance —-when insurer sued by the assignee of the policy i¿ this -State should be allowed to plead former judgmént in foreign State in favor of representative of insured—when leave to ' serve supplemental answer should be granted —when court will review , order denying such leave, i
    When an action by the assignee of a. policy of life insurance is - pending in this _■ • State, and the defendant, on a motion'for leave to serve a supplemental.answer, shows that the administrator of the insured has already recovered against it on • the^same policy in another State, and that the laws of said State allow only the' representative oi; one insured, to,bring action on the policy, whether assigned or not, and that the representative under the foreign-law holds"the-recovery for the benefit of the assignee, it is error to deny the motion., ,
    Neither plaintiff .was within the reach of process in the action brought by the other, arid a. case is presented where the principle of State comity applies, and . jurisdiction should he left with the court first obtaining it. ,
    
    When after a denial of such motion to serve a supplemental answer the cause is tried before the time to appeal from the order expires, and before such time ) the-defendarit appeals both'from- the judgment and from ,the order denying leave to serve the supplemental answer, the order -is before the court on a direct appeal: >
    
      Quwe, as to whether such order could have been reviewed' on appeal from the judgment had the tiinc'to appeal from the said order expired,
    Inouaham- and Laughlin, JJ., while concurring in result, dissented as to the validity of the proposed defense.
    Appeal by the defendant, The Northwestern Mutual Life Insurance Company, from a judgment of the Supreme Court in-favor.of the plaintiff, ' entered in the- -office of the clerk of the county of New York on the 23d day of October, 1905, upon the verdict of a jury -rendered by direction of the court, and- also "from an order entered in said clerk’s office on the 23d day of October, 1905, denying the defendant’s motion for a new" trial made upon the minutes, with notice of an intention .to bring up for review upon such appeal an order entered in said clerk’s -office ;on the 16th day of October, 1905, "denying leave to serve and tile a supplemental answer herein, and also an order entered on the 8th day of May, 1905, striking out certain allegations-from the original answer as irrelevant.
    
      ■Alfred OpdyJce of counsel [OpdyTte, Ladd c& Bristow, attorneys], for the appellant.
    
      Eugene Frayer of counsel [Frayer, Stotesbury & Gregg, attorneys], for the respondent.
   Clarke, J.:

This is an action by an assignee to recover on a policy of life insurance. The insured, Oliff F. Harrison, resided at Rutland, Yt., and upon his applicationK dated August 31, 1891, there was issued and delivered to him at Rutland by the defendant a policy dated at its office in Milwaukee, Wis., September 3, 1891, under which the company agreed to pay unto the executors, administrators or assigns of Oliff F. Harrison, the insured, of Rutland, in the County of Rutland, State'of Yermont, Two Thousand Dollars in sixty days after due proof in usual form of the fact and of the cause of his death during the continuance of this Policy.” The plaintiff was then living in Rutland, Yt:, and testified.that at that time she had been acquainted with Mr. Harrison and his family for twenty years; that on or about the 12th day of September, 1891, Harrison brought the policy to her and gave it to her as a gift, and at the same time signed an assignment of the policy and requested her to sign also. Said assignment was duly filéd with the company and is as follows:

“ Rutland, Vt., Sept. 12, 1891.
“ For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby assign and transfer to Mary Agnes Gleason (no relation) of Rutland, Yt., and for her sole use and benefit, all my right, title and interest in and to Policy No. 237990, issued by the Northwestern Mutual Life Insurance, Company. In case of the death of said assignee before the policy becomes due, then and in that case it shall be payable when due to the executors^ administrators and assigns of O. F. Harrison.
“ OLIFF FRANK HARRISON, [l. s.] ,
“ MARY AGNES GLEASON, [l. s.]”

The premiums on the policy were regularly paid by Mr. Harrison down to the last one, which was paid by plaintiff, “ because,” as she testified, “ I heard he was too ill to transact any business, and I thought perhaps the policy would lapse and I paid it.” Harrison died at Rutland on the lltli of October, 1903. A few days there-" after plaintiff removed from Rutland to the city of New York. On or about March It, 1905, she brought this action. In October, 1905, this case being on the day calendar for trial, defendant by order t,o .show cause applied for leave to serve and file a supplemental answer. This proposed answer set up that on the 6th of October, 1905, judgment was duly rendered and entered in an action in the County Court of Rutland, Yt.,. a court of general jurisdiction, wherein Percival W. Clement, as administrator of the goods and chattels, of Oliff F. iiarrison, deceased, was sole, plaintiff, and the defendant herein was sole defendant, in favor of said'adininistrator in the suni of $2,200; that said action was commenced in November, 1904, was brought to recover .on the same policy as in the case at bar, and that defendant gave notice of the pendency of said • action to the plaintiff herein on March 2, 1905, and prior to the . • commencement of this action in the State of New York ; that subsequent to the commencement of this action the defendant duly filed in said County Court of Rutland an amended or supplemental plea to the plaintiff’s declaration there pending, alleging as a defense that the said policy was claimed by this plaintiff to have been duly assigned by. the said Harrison during his .lifetime to her ; that the plaintiff herein had on March' 23, 1905, commenced this action in the.county of.New York against the defendant to recover upon said ' policy, and that said action was then pending and being pressed for trial by the plaintiff herein; that the" matters, of fact so stated were all duly established upon the-trial in Yermont, but were by said court held to constitute no defense under the laws of Yermont to. the action brought by the administrator, and judgment" was ordered . as aforesaid. -The proposed answer further set up the,delivery of . the policy and the assignment in Yermont, the continued residence of Harrison and of the. plaintiff in Yermont up to the time of the death of Harrison, 'and that after Harrison’s death letters of administration on his estate were duly issued,, and proceeded: “ III. .U nder and by virtue of the Laws of the State of Yermont, as the same - have existed since prior to the' year 1891, a policy of life insurance issued up'on the life of a resident of the State of Yermont, payable at of after the death of the insured, is- payable in the event of the' death of the insured while a resident of the State of Vermont, solely ' to the executors or administrators of the insured, whether or not the policy was by its terms made payable to soiné beneticiary named therein, or whether or not the policy was by its terms made payable to the assigns of the insured, and was in fact assigned by the insured during his lifetime. Under and by virtue of the laws of the said State of Vermont, payment of a policy of life insurance, which has been assigned within the State of' Vermont by the insured during his lifetime, to the assignee thereof, is no bar or defense to a claim to the proceeds of said policy made by the personal representatives of the insured after his death. Under and by. virtue of the Laws of the said State of Vermont, if a policy of life insurance has been duly assigned within the State of Vermont by the insured, and the proceeds of the said policy have been collected, by the personal representatives of the insured, the said personal representatives hold the proceeds of the said policy for the benefit of the said assignee.”

The motion for leave to serve said supplemental answer was denied, the order' being entered on Odtober Id, 1905. The trial came on on October 20, 1905, and at the opening of the case counsel for defendant asked to amend the answer as set forth above, stating: I want it to appear on the record that on every occasion when we parné to court we tried to get in that fact.” The motion was denied and the trial proceeded, and at its close the court directed a verdict for the plaintiff in the sum of $2,205, judgment thereon being duly entered for $2,309 on October 23,1905. So that it appears that upon this same policy of insurance, the company has a judgment for the full amount thereof entered against it and in favor of the insured’s administrator in the State of Vermont, and a judgment for the full amount in favor of the assignee thereof in this State, it having made but one promise to pay and having received but one set of premium payments. And it further appears that' it attempted, without success, in the suit first commenced and first tried in Vermont to interpose the New York action as a defense, and judgment having gone against it in Vermont with equal unsuccess attempted to interpose that judgment in New York. There seems to. be something unfair in requiring even an insurance company to submit to a double recovery on the same obligation.

On the 25th.'of October, 1905, two days after the entry of judgment and nine days after entry of the order denying the motion for leave to serve the supplemental answer, and, lienee, before the time to appeal from said order had expired, the defendant" appealed to this court “from the judgment * * * entered and filed * * * on the 23d day of October, 1905 ; * , * * and also from the order * - denying the defendant’s motion * * * for a new trial; * * * and take further notice that the defendant intends to bring up for review upon such appeal from the said judgment the order of the said Court herein denying the defendant’s motion for leave to make and serve a supplemental" answer herein, said order being dated October 16th, 1905, and being entered and filed iii the office of the clerk of the County of New York on the same day; * * * the defendant hereby appealing from said Iasi; two-mentioned orders and from each and evéry part of each thereof to the Appellate Division of the Supreme Court of the State of New York for the First Department.” So that the consideration of said .order is brought up, not only under the provisions • /of section 1316 of the Code of Civil Procedure as an intermediate order necessarily affecting the final'judgment, but-also by direct appeal taken by notice thereof within the time limited for appeal. If the time in which to appeal had expired the' question would have been squarely up whether this order could have been reviewed on the appeal from the judgment — a question not free from doubt. It was an intermediate order, “ because made after the commencement of the action and before the entry of judgment.” (Fox v. Matthiessen, 155 N. Y. 177; Taylor v. Smith, 164 id. 399.) But as said in Taylor v. Smith (24 App. Div. 527): The question whether- any particular order necessarily affects the judgment • will always be an open one.” And as whether, or not this is suplí an order is not necessary for the decision of this appeal, I do not pafes upon it. The order is before us on direct appfeál. I think it would have been so if the notice of appeal had only stated the intention to review on such appeal the said order. (Hyines v. Van Cleef, 39 N. Y. St. Repr. 811; Brumfield v. Hill, 28 id, 362 ; Piper v. Van Buren, 27 Hun, 385.) But the notice of appeal is direct, full and sufficient. And if, as stated by Chief Judge Parker, considering the provisions of section 1316 of the Code of Civil Procedure in Fox v. Matthiesseri (supra), “ the object of the statutory provisions on this subject is to prevent multiplicity of appeals in the same action,” it seems reasonable that but one record should have been made on appeal in this case. The case was on the day calendar; it was tried within four days after the entry of the order. Nothing could have been accomplished by an ád interim appeal. Defendant had a right to. appeal any time within thirty days (Code Civ. Proc. § 1351), and the appeal was taken with the • utmost promptness after judgment.

The order appealed from should be reversed and the supplemental answer allowed to be served, because it set up facts occurring since the commencement of the action which defendant ought to have been allowed to show in defense. Here was a defendant-sued in two jurisdictions upon the same policy. It could, bring in ' neither plaintiff in the other’s State. The action was brought first in Vermont. It is claimed that it must there be brought on the policy by the administrator. If the plaintiff in the case at bar liad a valid assignment, the administrator in Vermont was suing for her benefit and, if he recovered, would hold the money for her benefit, and she could obtain it by action from him or upon liis- accounting. The defendant could not get her into Vermont. She was a nonresident. If it undertook there to pay the money into court, how x would that have benefited it? If the courts of' this State are not to regard the judgment there obtained why should'they regard money paid into court? The defendant could not bring the Vermont administrator into our court as he was a non-resident and as administrator had no extraterritorial authority. Nor would it have advantaged it to pay the money into our court; Its position would then have been with money deposited in both courts. Now it has judgments entered in both courts. I fail to see how the- defendant could, have protected itself as long as the courts of the two States declined to recognize the pending, proceedings in the other. But the courts do not and should not allow such a condition to exist. The principle of State comity intervenes and jurisdiction is left with the court first obtaining it. In the case at bar the plaintiff is „ suing on what she claims to be a valid assignment of the policy. If her: assignment is valid then the administrator, in Vermont, under the allegations of the proposed supplemental answer as to the law of that State,, had been suing to recover her debt and now holds the judgment for her benefit;' lie is her representative. So the cause of action and the parties are in reality the same in the two, jurisdictions. .

In Sulz v. Mutual Reserve Fund Life Assn. (145 N. Y. 563) the' insured died in the State of Washington.' His wife was then residing in Brooklyn, She .was appointed administratrix in Brooklyn,,and subsequently one Thomas was appointed administrator of the estate of her husband in the State of Washington. Thomas at once commenced an action in that State to recover upon the policy.Within a few.days thereafter the wife commenced an action in this State to recover the. amount due under the same policy. The defendant set up the pendency of the action against it in Washington and claimed that the plaintiff had no right to maintain the action here because of those facts. Judge Beckham said : “ In such a case as this we think that the principle of comity between the States calls for the refusal on the,part of the courts of this State to entertain jurisdiction.” It was claimed, in addition, that the plaintiff might recover in another aspect and in her own right, irrespective of her character as administratrix. The court said: “We cannot, therefore, see any way by which the plaintiff ought to be permitted to maintain her action either as administratrix or as the widow and alleged -sole beneficiary covered by the policy. We confess that we do not see how the money arising from the payment under this policy or certificate can be made liable for any of the debts of the deceased any more in the State of Washington than in case the action was brought here. The statute under which the company is organized makes provision upon that subject, but as the courts of Washington have jurisdiction of that question, it will be matter for them to .decide, which they will do in’a manner consistent with- ..their views of the law. The judgment in this action ought, not to stand, and it must,"therefore, be reversed, and as the. plaintiff cannot in any event succeed upon a new trial,. her complaint, should be dismissed.” . • . . . ..

.. The Sulz case, was followed in Traflet v. Empire. life Ins. Co. (64 N. J. Law, 387), where an. administrator.having been appointed in Hew York and another in Hew Jersey,-the-action .on the policy in Hew York was first brought and went, to judgment,,.,the court saying, “ the jurisdiction of the court which is first in time will prevail,” and when the suit in - another State has proceeded to final judgment, the judgment may be pleaded in bar,” and, therefore, held the New York judgment a bar to the New Jersey suit.

It seems to me, therefore, that the order appealed from should be reversed and leave granted to serve the supplemental answer upon payment of costs to the time of trial, and that the judgment and order denying the motion for a new trial must be reversed and a new trial ordered, with costs to the appellant.

O’Brien, P. J., concurred.

Patterson, J. (concurring):

I agree with Mr. Justice Clarke that the appeal from the order denying defendant’s motion for leave to make and s.erve a supplemental answer may "be regarded as a direct appeal from that order, the notice having been served within the time allowed by law for such an appeal.

Ingraham, J. (concurring):

I agree with Mr. Justice Clarke that the appeal from the order denying the motion for leave to serve a supplemental answer is now before us, the defendant having in due time taken an appeal directly from that order. I also agree that the coúrt should have allowed the service of the supplemental answer so that the questions as to whether an action brought by the personal representative' of the insured in the State of Vermont, where the person insured resided at the time of his death, is a bar to an action in this State by an assignee of the policy, can be formally determined upon the trial of the action. The defendant having, been refused permission to serve this supplemental answer, the action was tried and the evidence offered to sustain- the defense set up in the supplemental answer excluded. If we reverse the order denying the motion for leave to serve the supplemental answer we are justified in reversing the judgment.

I do not concur in what Mr. Justice Clarke has said in respect to the validity of the defense or that Sulz v. Mutual Reserve Fund Life Assn. (145 N. Y. 563) is at all decisive of this question. In .that case the policy was payable to the estate of the insured, and the personal representatives of the insured commenced au action in the State of Washington, where the insured resided. Subsequently the pez'sonal representatives of the deceased appointed in this State commenced an action in this State to recover .upon the same policy, and it was held that the representatives of the estate of the deceased appointed by the State.of the testator’s doiziicile having first acquiz-ed jurisdiction .over the cause of action, a recovery in an action in that State was a good defense to the cause of action brought by the personal representatives appointed in this. State to recover upon the same cause of action. An entirely different question is presented here. The plaintiff sues, not as repz*esentative of the estate, but to enfoi’ce a contz'act which she is entitled to enforce for her own benefit.

I concur, therefore, in the result of Mi*. Justice Clarke’s opinion upon the ground that the defendant was entitled to have the facts set forth in this supplemental pleading before the court upon' the trial, in which case there could be a determination of the validity of the defense which can be properly reviewed upon appeal.

Laughlin, J., concurred.

. Order, reversed and. leave granted to serve supplemental answer on payment of..costs to the tizne of trial; judgment and order reversed.and new trial ordered, costs to appellant to abide .event. Settle.order on notice. .  