Hasberg v. Moses

Hatch, J.: We are assured by the learned counsel for the appellant that he interposed his demurrer to the complaint in this action upon a decision of this court as expressed in McCabe v. McCabe (67 App. Div. 589), and that the learned court at Special Term entirely misappre — 202 — hended the force and effect of such decision in overruling the demurrer interposed in the present, action. We have reached the conclusion that the learned counsel has misapprehended the effect of our decision in the McCabe case. Therein we held that the complaint, in all its essential features^ was an action at law to recover a sum of money based upon contract, and that the demurring defendant, who was brought into the action, was not shown to be possessed of any claim adverse to the plaintiff therein, nor was his presence necessary for the settlement of any question which determined her right to recover upon the policy of insurance which was the subject of the action. It seemed clear to us that the plaintiff therein must stand or fall upon her right to recover of the defendant insurance company, quite independent of any claim made by the demurring defendant therein; consequently, we held that he was not a necessary party to the determination of any question which was presented by the issues raised between the plaintiff and the insurance company. Nearly all of the elements which we deemed essential to make an action in equity instead of an action at law were absent from the complaint in that action. In the present case the facts averred in the complaint clearly call for the application of a different rule. In the McCabe case the defendant insurance company denied liability upon the policy of insurance, the subject of the action. Here the defendant insurance company admits liability to pay the amount secured to be paid by the policy and holds the fund for that purpose, standing indifferent as to the party entitled thereto. In the McCabe case the right of the plaintiff, to recover rested upon the contract of insurance and that alone. In the present case the right of the plaintiff to recover depends not upon such contract, which is admittedly valid, but upon the fact as to whether the demurring defendant has title to such fund as against the plaintiff. It is shown by the complaint that he claims to be entitled to this fund by virtue of an assignment from the insured during his lifetime. It is, therefore, evident that the plaintiff, in order to recover, must successfully meet this claim, otherwise she has no interest in the fund. Such fact is not a dispute between the plaintiff and defendant insurance company, but is an issue solely between the plaintiff and the demurring defendant. It necessarily follows that if the latter has an assignment of this — 203 — policy of insurance, which is valid, he then becomes entitled to have and receive this fund. His right thereto, came into being 'prior to the time when the plaintiff’s right accrued, if she have any right at all. The assignment, if it exists, must have been executed by the insured prior to his death, and, if valid, vested in the demurring defendant title to the moneys secured to be paid by the policy when the contingency happened upon which payment depended. Plaintiff’s right could not accrue until the insured had deceased; consequently, as the insurance company admits liability, the only obstacle which stands in the way of plaintiff’s right to recover is the assignment held by the demurring defendant. Instead, therefore, of its being a contest between the insurance company and the plaintiff, the contest has become one between the demurring defendant and the plaintiff. She is not entitled to have and receive this fund until such time as she has shown a superior right to that held by Moses. She must show facts sufficient upon which to base a superior claim to that acquired by the assignment which Moses holds, or she must fail in her action. It is evident, therefore, that the issue presented by this pleading, as to who is entitled to the fund, is between the plaintiff and Moses and no one else. The defendant insurance company insisted upon a delivery of Moses’ receipt, not because it disputed liability under the policy, but for the reason that Moses holds an' apparent title thereto, and the insurance company, therefore, could not pay the plaintiff or Moses without the hazard of being required to pay twice upon the same instrument, unless such receipt was delivered, or the plaintiff relinquished her claim in its favor. In the McCabe case the plaintiff’s right to recover was dependent upon the plaintiff’s establishing 'the liability of the defendant insurance company. In the present case the plaintiff’s right to recover is dependent upon her ability to defeat the claim of Moses. It is evident, therefore, that the presence of Moses is absolutely essential to a determination of plaintiff’s rights in the premises. While the plaintiff _ has not in terms demanded in her complaint that Moses be compelled to cancel and surrender the assignment which he holds, yet she has asked that it be adjudged that he has no lien upon the fund, nor interest therein, nor any lien upon, interest or claim in the policy, and further that the plaintiff have such other relief as may be. just and proper. And as it appears by the — 204 — averments of the complaint what the claim of Moses is, the case is brought' within section 452 of the Code of Civil Procedure, for from the facts averred it appears that a complete determination of the controversy cannot be had without the presence of Moses. Under such circumstances, he is properly -made a party and the relief asked is clearly equitable. (Mahr v. N. U. F. Insurance Society, 127 N. Y. 452.) Every essential element is stated in the complaint to maintain an action of interpleader at common law-.' The- essential elements of - such a bill were :■ (1) That two or more persons made a claim against the complainant; (2) for the same thing; (3) that the complainant has no beneficial interest in the' thing claimed; (4) that determination cannot be made as to who is entitled without hazard to the complainant, and by affidavit that there was no collusion between the: complainant and any of the claimants. (Atkinson v. Manks, 1 Cow. 691.) Eliminating the consideration of collusion, a complete case for' interpleader is presented by the complaint. Such actions are equitable in their character, and the plaintiff may avail himself of such-facts to maintain an equitable action where the determination of conflicting claims is essential in order -to enable him to recover the fund. The facts would also support a motion for interpleader Under the provisions of section 820 of the Code of Civil Procedure. (Burritt v. Press Pub. Co., 19 App. Div. 609; Stevenson v. N. Y. Life Insurance Co., 10 id. 233.) The learned court at Special Term was, therefore, correct in holding that the complaint was equitable in character; that Moses Was an essential and necessary party in determining title to the fund, and that McCabe v. McCabe, (supra) was not an authority against such conclusion. On the contrary, when correctly construed, it becomes an authority in support of the plaintiff’s contention. Criticism is further made of the 7th paragraph of the complaint that the averments therein are inconsistent, in -that ■ they charge that the assignment held by Moses .was wrongfully and Unlawfully procured from the insured by force, or without consideration, or without having disclosed its real nature or character, or what the insured was about to execute, or that he received it as collateral security for the payment of a loan, claimed to have been made by- the defendant Moses to the insured, and other alternative — 205 — averments. Because the pleading states facts for relief in an alternative form does not make it bad, if any one of such averments would be sufficient upon which to found the relief asked for in the ■complaint. (Pittsfield Nat. Bank v. Tailer, 60 Hun, 130; Zimmerman v. Kinkle, 108 N. Y. 282.) Mr. Abbott, ..in his note to Munn v. Cook (24 Abb. N. C. 314), very clearly states the rule governing such cases: “ As before ■explained, there is-a class of eases in which for no fault of his own, and usually by fault of the defendant, the plaintiff does not know which of two absolutely inconsistent grounds he may succeed in proving, either of which will entitle him to recover, as in the case of fraud or mistake, or a case of suspected agency for an undisclosed principal. If it is important to plaintiff’s policy, as it usually is, ■especially in such classes of cases, to obtain a sworn answer, he must make a sworn complaint, and he cannot, even on information and belief, swear to inconsistent facts. Therefore he cannot state such inconsistent grounds of recovery in separate causes of action, each alleged without qualification. He must state them, if at all, in a •single cause of action and in the alternative. A rule which allows plaintiff to state essential allegations in the alternative is, obviously, capable of much abuse, because by multiplying alternatives he may leave the defendant quite in the dark as to the facts the latter must be prepared to' meet. But within limits which will exclude such •■abuses, the right of the plaintiff to allege alternative grounds is now recognized by the highest authority, and is not without sanction in the lower courts and courts of other jurisdictions.” (Pp. 332, 333.) Averments in this form are not the subject of demurrer. The remedy, if they are so uncertain as to leave the adverse party in the dark in respect to that with which he is charged, is by motion to make the pleading more definite and certain. (Marie v. Garrison, 83 N. Y. 14; Scheu v. N. Y., L. & W. R. R. Co., 12 N. Y. St. Repr. 99, and cases cited.) There is little difficulty in the way of giving force and effect to this rule of pleading and protecting at the same time the adverse party against any abuse which may arise therefrom. These views lead to the conclusion that the demurrer to the complaint was properly overruled. It follows that the interlocutory judgment should be affirmed, — 206 — with costs, with leave to the defendant to withdraw démurrer and answer over within twenty days on payment of costs in this court and in the court below.' Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; O’Brien, J., concurred in result. Judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and answer over within twenty days on payment of costs in this court and in the court below.